Citation Nr: 1134831 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-07 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected asthma. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1983 to June 1987 and from February 1988 to January 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a hearing before a Decision Review Officer in March 2009, and a transcript of this hearing is of record. In June 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain a VA medical opinion. The action specified in the June 2010 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's obstructive sleep apnea did not have onset in service and was not caused or aggravated by the Veteran's active military service, to include his service connected asthma. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected asthma, have not been met. 38 U.S.C.A. § 1110, 1112, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303, 3.310, 3.322 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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) (2010). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. The Veteran is seeking entitlement to service connection for obstructive sleep apnea. There is no evidence in the Veteran's service treatment records that he suffered from obstructive sleep apnea in service and he was not diagnosed with obstructive sleep apnea until 2001, a decade after separation from service. However, the Veteran has testified that he experienced symptoms of sleep apnea in service, and a family member, D.S., submitted a statement on the Veteran's behalf stating that she observed the Veteran stop breathing while sleeping during service and after separation from service. A medical opinion was requested and in August 2006, a VA examiner stated that "[the Veteran's] obstructive sleep apnea is not secondary to his asthma; asthma is not a risk factor for obstructive sleep apnea." While this opinion addresses the issue of whether the Veteran's asthma caused his obstructive sleep apnea (providing evidence against this claim), the examiner did not address whether the Veteran's service connected asthma has permanently worsened his obstructive sleep apnea beyond the natural progression of the disability. Accordingly, the Veteran was afforded another VA respiratory examination in July 2010. The examiner reviewed the Veteran's claims file, including service treatment records. At the examination, the Veteran reported a long history of asthma beginning in service. He stated that he currently wheezes at night and is sometimes awakened by wheezing, approximately three or four times a month. During his active service, the Veteran slept separately from other sailors and there were no complaints of loud snoring; however, on occasional visits to his parent's house, he was told that he snored loudly. After separation from service, he lived alone and has no knowledge of whether or not he snored loudly. He was diagnosed with sleep apnea following a sleep study in December 2001. The Veteran currently uses a CPAP machine with mask almost every night. He usually sleeps from 9pm to 2am, when he is awakened by wheezing. In this regard, the Board must note that many of the Veteran's statements, such as those above, to health care providers provide evidence against his claim on a factual basis. Simply stated, the Veteran's own statements seem to suggest that the Veteran himself did not believe he had any symptoms of sleep apnea during service or for many years after service. The examiner diagnosed the Veteran with bronchial asthma, sub-optimally controlled, and obstructive sleep apnea. The examiner concluded that "the Veteran's service connected asthma has not worsened his obstructive sleep apnea to any degree. His service connected asthma has not permanently, temporarily, or transiently worsened his obstructive sleep apnea, and has neither caused nor aggravated his obstructive sleep apnea." The examiner noted that the Veteran's asthma involves both the large bronchi and small airways in his lungs, while the Veteran's obstructive sleep apnea occurs in the oropharynx, nasopharynx, and adjacent soft tissue. The examiner also noted that the Veteran is obese, and obesity contributes to obstructive sleep apnea. The Board finds this medical opinion is entitled to great probative value as it provides a detailed basis for its reasoning that the Board finds compelling. Based on the above evidence, the Board finds that entitlement to service connection for obstructive sleep apnea is not warranted. There is no medical evidence of obstructive sleep apnea in service or within a decade of service. Additionally, two VA medical examiners have opined that the Veteran's obstructive sleep apnea is unrelated to his service connected asthma. While the Veteran has testified that he has been told by family members that he snored loudly in service and a family member has submitted a statement saying that she observed the Veteran sleep during his military service and he appeared to stop breathing, the Board finds that the other evidence of record is more probative than these lay statements, indicating a problem that began many years after service and is unrelated to service. While the Veteran may believe that his asthma has caused or aggravated his obstructive sleep apnea, the Veteran has not demonstrated that he has any knowledge or training in determining the etiology of such a medical condition. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has obstructive sleep apnea due to his military service, to include his service connected asthma, is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather, such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. Significantly, the Veteran has not pointed to any competent medical evidence of record showing a relationship between his obstructive sleep apnea and his active military service. For all the above reasons, entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected asthma, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was satisfied by letters sent to the Veteran in August 2006 and July 2008. These letters informed the Veteran of what evidence is required to substantiate his claim and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran was provided an opportunity to set forth his contentions during the March 2009 hearing before a Decision Review Officer. The appellant was afforded a VA medical examination in August 2006 and July 2010. These examinations are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs