Citation Nr: 1228135 Decision Date: 08/15/12 Archive Date: 08/21/12 DOCKET NO. 10-10 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from July 1950 to January 1973, including service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision by the Department of Veterans Affairs (VA) San Juan, Puerto Rico Regional Office (RO). As the Veteran lives in Tennessee, the Nashville RO has properly assumed jurisdiction over the claim. The Veteran's March 2010 Substantive Appeal reflects that he wished to testify at a Travel Board hearing. In December 2011, the Veteran was informed that his hearing was scheduled for January 2012. The Veteran did not attend his scheduled hearing, and he has not provided good cause as to why he missed this hearing. Accordingly, his hearing request is considered waived. This case was previously before the Board in June 2012. At that time, the Board referred this matter to the Veterans Health Administration (VHA) for an advisory opinion concerning the etiology of the Veteran's condition. The advisory opinion has been obtained and has been included in the claims folder for review. As the Board's decision herein is completely favorable to the appellant with regard to the issue referred to the VHA, he was not given an opportunity to respond to this opinion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's sleep apnea is aggravated by his service-connected chronic obstructive pulmonary disease (COPD). CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for the Veteran's claimed sleep apnea. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Further, service connection may be granted for a disability shown to be secondary to an already service-connected disorder. In such cases, service connection may be granted where it is shown that either (1) the claimed disability "is proximately due to or the result of a service-connected disease or injury" or (2) there is an increase in the severity of the claimed disability "that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Again, the Veteran in this case seeks service connection for sleep apnea. For the reasons that follow, his claim shall be granted. First, the Board acknowledges that the Veteran currently suffers from obstructive sleep apnea. The Veteran was first diagnosed as suffering from this condition in September 2001; a private treatment record from Johnson City Medical Center reflects that, after the Veteran underwent a sleep study and pulmonary function testing, he was diagnosed as suffering from moderately severe sleep apnea. Subsequent VA and private treatment records also show that the Veteran suffers from sleep apnea. Though there is no evidence that the Veteran suffered from this condition during his active service, his service treatment records nevertheless do indicate that he complained of respiratory problems during his active service. The Veteran underwent a pulmonary function test in October 1972. An internal medicine note from the Flight Surgeon's Office from that same month reflects that the Veteran suffered from a shortness of breath on moderate exertion for approximately two years. This record also notes that he was a former cigarette smoker and that he had mild dyspnea on climbing two flights of stairs. He did not have a history of wheezing, chronic cough, or sputum production. The diagnosis was "mild chronic obstructive pulmonary disease to be ruled out." As the Veteran has sleep apnea and as there was evidence of his having respiratory problems during his active service, the Board sought the opinion of a VHA specialist to determine whether his current condition is related to his active service. In a July 2012 reply, that specialist concluded that the Veteran's obstructive sleep apnea is less likely than not related to his in-service dyspnea and other respiratory complaints. As noted above, however, service connection may also be established if it is shown that the Veteran's claimed sleep apnea is secondary to a service-connected disability. The Veteran is service-connected for COPD with emphysema. As part of its VHA request, the Board asked the VHA specialist to determine whether the Veteran's claimed sleep apnea is secondary to his service-connected COPD. Though the specialist found that his sleep apnea is less likely as not a result of his COPD or emphysema, he did conclude that it is more likely than not that the Veteran's sleep apnea may be exacerbated by his service-connected COPD. Again, service connection on a secondary basis may be granted both for disabilities that are proximately caused by a service-connected disability or for a disability that is aggravated by a service-connected disability. Reading the VHA specialist's opinion in the light most favorable to the Veteran and resolving all reasonable doubt in his favor, the Board finds that the evidence supports that the Veteran's claimed sleep apnea is aggravated by his service-connected COPD. As such, the Board finds that service connection for the Veteran's obstructive sleep apnea is warranted. ORDER Service connection for obstructive sleep apnea is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs