Citation Nr: 0923462 Decision Date: 06/22/09 Archive Date: 07/01/09 DOCKET NO. 05-17 449A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for sleep apnea, including as secondary to a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1982 to January 1989 This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Columbia, South Carolina, that denied service connection for sleep apnea. The Veteran has been rated as permanently and totally disabled by reason of her service connected psychiatric disorder since July 2004. She was rated 100% disabled since August 1998. She was determined to be incompetent for purposes of managing VA benefit payments in December 1999. This matter was previously remanded by the Board in October 2007. The additional development prescribed therein having been completed, this case was returned to the Board for appellate disposition. FINDINGS OF FACT 1. The Veteran's sleep apnea was neither shown to have been present in, nor caused or made worse by, service. 2. The Veteran's sleep apnea was not shown to have been caused or permanently made worse by a service connected disability, including a psychiatric disorder. The Veteran's sleep apnea was not shown to have been caused or made worse by her psychotropic medications. The Veteran's morbid obesity, which led to her sleep apnea, was not shown to be related to her psychotropic medications. CONCLUSIONS OF LAW 1. The Veteran's sleep apnea was not incurred in or aggravated by her service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2008). 2. The Veteran's sleep apnea is not proximately due to, the result of, or aggravated by, a service connected disability. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). The third sentence of 38 C.F.R. § 3.159(b) (1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect on the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004 (July 16, 2004). The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 3120. However, VCAA notification does not require a pre- adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). Here, the above cited notice requirements were satisfied by an April 2004 letter sent to the claimant by the RO. In this letter, issued prior to the rating decision, the RO informed the claimant of its duty to assist him in substantiating his claims under the VCAA and the effect of this duty upon such claims, as well as what information and evidence must be submitted by the claimant. The April 2004 letter adequately explained what the claimant was required to show in order to establish service connection for the Veteran's sleep disorder on a secondary basis. A November 2007 letter also explained VA's duties to assist the claimant, and informed him what was necessary to establish service connection on a direct basis. The claim was thereafter readjudicated in a supplemental statement of the case (SSOC) dated in September 2008. In any event, neither the claimant nor the Veteran ever claimed that the Veteran's sleep disorder was present during her service or that it was caused or aggravated by her service. The Board is aware of the United States Court of Appeals for Veterans Claims (Court) decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), in which the Court held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the claimant must be notified that a disability rating and effective dates for the award of benefits will be assigned if service connection is awarded. Id at 486. Two letters dated in November 2007 and July 2008 adequately informed the claimant how VA assigns disability ratings and effective dates. In any event, any error in providing such notice is harmless in this case insofar as service connection is denied, hence no rating or effective date will be assigned with respect to the claimed condition. For the above reasons, the Board finds that VA satisfied its duty to notify. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including VA treatment records, service treatment records, and social security disability records. The prior Board remand dated in October 2007 instructed the AMC/RO to contact the claimant to identify any treatment that the Veteran received for her sleep apnea and to obtain an authorization enabling VA obtain records pertaining to this treatment. In November 2007, the RO/AMC sent the claimant a letter requesting this information and an authorization to obtain records from any identified private treatment source. However, the claimant did not respond to this request. Therefore, VA was unable to determine whether the Veteran received any private treatment for her sleep apnea or to obtain records pertaining to such treatment. The Veteran was examined with respect to this claim in June 2006. The Board remand dated in October 2007 instructed the RO/AMC to obtain a second examination, addressing the nature and etiology of any currently diagnosed sleep disorder and whether any such disorder was the result of weight gain that the Veteran experienced as a result of her psychotropic medications. In accordance with these instructions, the Veteran was reexamined in July 2008. The July 2008 examination complied with the instructions set forth in the Board's October 2007 remand. The Board therefore finds that the VA satisfied its duty to assist. II. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted where a disability is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 310(a). Additionally, any increase in severity of a non-service connected disease or injury that is proximately due to, or the result of, a service connected disability, will be service connected. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran is service connected for a psychiatric disorder, rated 100 percent disabling, and hypertension, rated 10 percent disabling. The claimant contends that the Veteran's use of psychotropic medications to treat her service connected psychiatric disorder(s), including schizophrenia, caused her to become morbidly obese, which in turn caused her to develop sleep apnea. The Board reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the claimant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's service treatment records do not show complaints of, or treatment for, sleep apnea. Service treatment records reflect that the Veteran had difficulties maintaining her weight within standards while she was on active duty. Service treatment records reflect that her weight problems at that time may have been at least partially related to her use of certain prescribed medications, including Tofranil (imipramine hydrochloride), a tricyclic antidepressant. However, service treatment records reflect that Tofranil was discontinued in or about July 1988. In January 1989, approximately two weeks before she was discharged, the Veteran weighed 155 pounds. VA treatment records show that the Veteran complained that she possibly stops breathing at night in July 2003. She was diagnosed with "rule out sleep apnea" and a sleep study was recommended. This sleep study was performed in June 2004 and the results were interpreted as consistent with sleep disordered breathing. At that time, the Veteran weighed 277 pounds. Her psychotropic medications then included Risperdal (risperidone), Seroquel (quetiapine fumarate), and Paxil (paroxetine). The sleep study report indicated that weight reduction was imperative, and that the Veteran was to be issued a continuous positive airway pressure (CPAP) machine. No recommendations were made concerning the Veteran's psychotropic medications. She was provided a CPAP machine in July 2004. The Veteran was examined by VA in June 2006. The examiner did not indicate that he reviewed the claims file. At the time of the examination, the Veteran weighed 315 pounds. The Veteran reported that she was diagnosed with sleep apnea in 2003 and was prescribed a CPAP machine. The examiner diagnosed sleep apnea; however, as noted in the October 2007 Board remand, this diagnosis was apparently made by history. The examiner opined that the Veteran's sleep apnea was less likely than not related to her psychiatric disorder. The examiner noted that she reviewed scientific literature and that there was no information indicating that sleep apnea is causally related to a psychiatric disorder. The examiner also opined that the Veteran's sleep apnea was less likely than not related to her psychiatric medications. The examiner noted that she reviewed the Veteran medications, and that none of them were identified as risk factors for sleep apnea. The examiner opined that the Veteran's sleep apnea was at least as likely as not related to her obesity. Per the instructions in the October 2007 Board remand, the Veteran was reexamined in July 2008 to clarify whether she had a current chronic sleep disorder and, if so, whether such disorder was related to her schizophrenia, her psychotropic medications, or weight that she gained as a result of her psychotropic medications. The examiner noted that she reviewed the claims file. She indicated that the Veteran's psychotropic medications included Celexa (citalopram hydrobromide), Seroquel (quietiapine fumarate), Risperdal (resperidone), as well as Cogentin (benztropine besylate) which was prescribed to help mediate various side effects of these medications. She noted that, in the past, the Veteran had been prescribed Zoloft (sertraline), which can cause weight loss. The examiner noted that the Veteran's treatment records indicated that the Veteran weighed approximately 147 pounds when she was discharged from service. In April 2005, she weighed approximately 280 pounds. In June 2006, she weighed 315 pounds. Upon examination, she weighed 347 pounds and had a body mass index (BMI) of 59.6. The examiner diagnosed obstructive sleep apnea and morbid obesity. The examiner determined that it was at least as likely as not that the Veteran had a chronic sleep disorder. The examiner opined that it was less likely than not that the Veteran's sleep apnea was related to schizophrenia, medications for schizophrenia, or side effects of medications for schizophrenia including weight gain. The examiner indicated that the Veteran's obstructive sleep apnea was at least as likely as not related to her morbid obesity. The examiner explained that while the Veteran's medications can cause weight gain, typically a patient normalizes on these medications. She explained that the side effect profiles of the Veteran's medications in no way indicate that a patient would experience weight gain sufficient to cause morbid obesity with a BMI of 59.6. She also observed that while the Veteran was previously prescribed one medication that was associated with weight loss, the Veteran did not experience the side effect of weight loss while taking that medication. While the evidence shows that the Veteran currently has sleep apnea, this disorder is not shown to be related to her service, her service connected psychiatric disorder, or the side effects of any of her psychotropic medications. Sleep apnea was not diagnosed until many years after service. There is no evidence in the claims file suggesting a link between the Veteran's service and her sleep apnea. Moreover, the claimant does not contend that the Veteran's sleep apnea was incurred during her service, or as a result of her service. Rather, the Veteran stated that she was diagnosed with sleep apnea in 2003. While the Veteran is currently service connected for a psychiatric disorder, there is no medical evidence linking this disability to the currently diagnosed sleep apnea. Two VA examiners opined that the Veteran's sleep apnea was more likely than not a result of her morbid obesity. As previously discussed, the examiner who performed the July 2008 examination of the Veteran determined that it was less likely than not that the Veteran's morbid obesity was caused by her use of psychotropic medications. There is no medical evidence to the contrary. While the Veteran and the claimant's representative have explained that they believe that the Veteran's morbid obesity is the result of side effects from her medications, there is no indication that they have the requisite expertise to render an opinion as to the etiology of any medical condition. See, e.g. Wallin v. West, 11 Vet. App. 509, 514 (1998). See also, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for sleep apnea, including as secondary to a psychiatric disorder, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs