Citation Nr: 1225125 Decision Date: 07/19/12 Archive Date: 07/30/12 DOCKET NO. 09-21 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for sleep apnea, claimed as due to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to June 1969. This matter came to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, the Veteran testified before the undersigned Veterans Law Judge at the Phoenix RO. A copy of the hearing transcript is associated with the claims folder and has been reviewed. This matter was remanded in May 2011. FINDING OF FACT Sleep apnea did not have its clinical onset in service, and is not otherwise related to the Veteran's active service, and is not due to or aggravated by service-connected PTSD. CONCLUSION OF LAW Sleep apnea was not incurred or aggravated in service and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and 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 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In December 2007, a VCAA letter was issued to the Veteran with regard to his claim of service connection. The letter notified the Veteran of what information and evidence is needed to substantiate his claim of service connection, what information and evidence must be submitted by the claimant, the information and evidence that will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the May 2011 Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records, post-service VA treatment records, and lay statements and testimony of the Veteran. There is otherwise no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). In February 2009 and May 2011, the Veteran was afforded VA examinations and etiological opinions were proffered, and in September 2011 an addendum opinion was proffered. Collectively, such examination reports are thorough and contain sufficient information to decide the issues on appeal. The examiners reviewed the Veteran's history, examination findings, and rendered an objective opinion based on sound medical principles. Collectively, the examination reports are adequate for adjudicative purposes. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment sets forth language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection is in effect for PTSD, rated 30 percent disabling, effective June 30, 2004. The Veteran asserts that his sleep apnea is due to or aggravated by his service-connected PTSD. An August 2007 VA pulmonary sleep study consultation reflects that the Veteran has severe sleep apnea. A September 2008 note from the Veteran's VA treating psychiatrist reflects that the Veteran suffers from PTSD, and has had anxiety, sleep disturbance, increased startle response, depression, irritability, and an inability to tolerate crowds and has trouble dealing with others. In the past 6 months, his sleep problems had become more severe, with symptoms such as insomnia, nightmares, trouble staying asleep, and daytime fatigue. The VA psychiatrist stated that he suffers from a disability due to these symptoms. In February 2009, the Veteran underwent a VA examination. The examiner interviewed and examined the Veteran and reviewed the claims folder. The examiner stated that the Veteran has for the last two years at least experienced sleep apnea, and benefits symptomatically from nasal CPAP mask during sleep. The examiner stated that the relationship of PTSD to sleep apnea has been the subject of 10 studies cited, most of which study the relationship indirectly, and cannot point to etiology or mere co-existence, and at least one study finds no such relationship. The examiner concluded that there is evidence to link PTSD with increased arousal that is disturbing sleep pattern, not apnea per se, which is an obstructive phenomenon, and even for that link there is evidence to the contrary. The examiner opined that the Veteran's obstructive sleep apnea is less likely than not to be related/caused by his PTSD. As to the question of whether or not PTSD aggravated his symptomatic sleep disorder, the examiner could not answer without resort to baseless speculation. The examiner, however, did not provide an explanation as to why an opinion regarding aggravation was not possible. As the U.S. Court of Appeals for the Federal Circuit stated in Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed.Cir.2009), an "examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection." Moreover, the examiner did not address the assertion that the Veteran's sleep apnea may be due to medication taken for PTSD. Thus, while the opinion is credible with regard to the opinion of a relationship between sleep apnea and PTSD, it is incomplete with regard to a relationship between PTSD medication and aggravation. A May 2009 VA outpatient entry reflects that the Veteran has been prescribed Prazosin (4mg) for nightmares, Paroxetine (40mg) for depression, and Lorazepam (1mg) for anxiety. In May 2011, the Veteran underwent another VA examination. The examiner noted that the Veteran was prescribed CPAP which he has used nightly since his diagnosis in 2004. He weighed approximately 160 pounds when he was discharged from service. Since that time he has gained 48 pounds. He uses CPAP nightly with an improvement in sleep quality. He wakes feeling rested. He denies somnolence. The examiner noted that PTSD was diagnosed in 2004 and he started taking Lorazepam, Paxil, and Prazosin with an improvement in his depression and nightmares. He continued to experience nightmares despite the use of these medications. He reported no side effects from the Lorazepam, Paxil, and Prazosin. The examiner diagnosed obstructive sleep apnea. The examiner explained that sleep apnea is a condition with a clear and specific etiology. It is a condition that is caused by obstruction of the upper airways and is predominantly found in obese individuals with a neck circumference of 18 inches. The Veteran is in the obese category with a BMI of 35 and a neck circumference of 18 inches. He has gained 48 pounds since military discharge. Sleep apnea is not a condition that is secondary to medication side effect (such as somnolence or respiratory depression). The examiner stated that it is not as likely as not that the Veteran's sleep apnea is proximately due to the Veteran's PTSD or medication taken for PTSD to include Prazosin, Paroxetine (Paxil), or Lorazepam. With regard to aggravation, per the Veteran's own report his sleep apnea symptoms are well controlled with the use of nightly CPAP. He denied daytime somnolence, frequent nighttime awakening and has a current ESS score of 6 when using CPAP. The examiner reiterated that sleep apnea is a condition with a clear and specific etiology. It is a condition that is caused by obstruction of the upper airways and is predominantly found in obese individuals with a neck circumference of 19 inches. He is in the obese category with a BMI of 35 and a neck circumference of 18 inches. He has gained 48 pounds since military discharge. The examiner opined that sleep apnea is not a condition that is caused by or a result of a psychiatric condition or medications to treat said conditions (either depression, anxiety, or PTSD). In September 2011, the examiner provided an addendum opinion clarifying that it is not at least as likely as not that sleep apnea is proximately due to the Veteran's PTSD or medication taken for PTSD, to include Prazosin, Paroxetine, and Lorazepam. The examiner stated that if the Veteran has worsening sleep symptoms it is at least as likely as not due to his obesity with weight gain. The examiner also opined that the Veteran's sleep apnea has less likely than not undergone a permanent increase in severity due to the Veteran's PTSD or medication taken for PTSD. Upon review of the evidence of record, the Board has determined that service connection is not warranted for sleep apnea. Initially, the Board notes that the Veteran has not asserted that his sleep apnea is directly due to active service, but rather he claims that such disability is due to his PTSD, and medications taken therefor. Likewise, service treatment records from his period of active service are void of any complaints or treatment for a sleep disorder or sleep apnea. Moreover, as detailed sleep apnea was not diagnosed until 2004, thus approximately 34 years after separation from service. Evidence of a prolonged period without medical complaint can be considered as a factor, along with other factors concerning the Veteran's health and medical treatment during and after military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). With regard to the assertion that his sleep apnea is due to his service-connected PTSD or PTSD medications, as detailed the February 2009 VA examiner opined that his disability is not caused by PTSD, and the May 2011 VA examiner opined that his disability is not caused by or aggravated by his PTSD, or medications taken for PTSD. The Board acknowledges that the September 2008 VA psychiatrist stated that the Veteran has PTSD and had been suffering from sleep disturbance, including symptoms such as insomnia, nightmares, trouble staying asleep, and daytime fatigue, and that he suffers from a disability due to these symptoms. The Board notes, however, that chronic sleep impairment is a symptom associated with a 30 percent rating pursuant to the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130, Diagnostic Code 9411. Thus, his sleep impairment is contemplated in assigning a 30 percent rating for service-connected PTSD. Moreover, the February 2009 VA examiner explained that there is evidence to link PTSD with increased arousal that is disturbing sleep pattern, but not apnea as this is an obstructive phenomenon. Likewise, the May 2011 VA examiner explained that obstructive sleep apnea is a condition with a clear and specific etiology which is caused by obstruction of the upper airways and is predominantly found in obese individuals, noting that the Veteran is overweight. For these reasons, both the February 2009 and May 2011 VA examiners opined that the Veteran's sleep apnea is not caused by PTSD. Thus, based on the lack of a clear opinion provided by the September 2008 VA psychiatrist associating a sleep disability to his PTSD, the Board assigns more probative weight to the opinions of the February 2009 and May 2011 VA examiners. As detailed, the May 2011 VA examiner opined that the Veteran's sleep apnea is not due to taking medications for PTSD, such as Prazosin, Paroxetine, or Lorazepam, explaining that sleep apnea is not a condition that is secondary to medication side effect, such as somnolence or respiratory depression. With regard to any aggravation, the May 2011 VA examiner opined that his PTSD does not aggravate his sleep apnea, noting that his sleep apnea is well-controlled, noting again that sleep apnea is a condition with a clear and specific etiology. The opinions of the VA examiners leads to a finding that the Veteran's sleep apnea is not proximately due to or aggravated by his PTSD or PTSD medication. The Board accepts the opinions of the VA examiners as being the most probative medical evidence on the subject, as such were based on a review of all historical records, and contain detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination reports, especially the May 2011 VA examination report with September 2011 addendum, and the fact that the opinions were based on a review of the applicable record, the Board finds such opinions are probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). The Board has considered the Veteran's contention that a relationship exists between his sleep apnea and PTSD. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In this capacity, the Board finds the Veteran is competent to attest to his symptomatology associated with his sleep apnea and PTSD; however, the Veteran is not competent to relate his sleep apnea to his PTSD and PTSD medications. Rendering a medical conclusion requires expertise beyond that of the Veteran. The Board has weighed the Veteran's statements as to sleep apnea symptomatology with the medical evidence of record, to include the post-service medical evidence, and VA medical opinions of record. After weighing the lay and medical evidence, the Board finds that the lay evidence as to incurrence due to service-connected PTSD and PTSD medications is less convincing than the objective medical evidence of record and, as such, is of less probative value here. The probative medical evidence does not support a relationship between sleep apnea and his PTSD and PTSD medications. In conclusion, a preponderance of the evidence is against a finding that the Veteran's sleep apnea is causally related to the Veteran's active service, and to a service-connected disability. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs