Citation Nr: 1134846 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-15 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether vacatur of the decision of the Board of Veterans' Appeals issued on December 13, 2010 is warranted. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Mrs. C.R. ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In October 2010, the Veteran testified in a personal hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. On December 13, 2010, the Board upheld the RO's denial of the Veteran's claim for service connection for sleep apnea, to include as secondary to service-connected PTSD. Subsequently, the Veteran submitted a motion for reconsideration to the undersigned Veterans Law Judge, dated January 2011, and stated that he was treated at the VA Medical Center (VAMC) in Milwaukee, Wisconsin for sleep apnea on October 27, 2010. This treatment report, which has since been obtained and associated with the claims file, was not of record at the time the December 2010 Board decision. To ensure due process, the Board must vacate the December 13, 2010 decision and adjudicate the Veteran's appeal with consideration of all evidence of record. See 38 C.F.R. § 20.1304(c) (2010). FINDINGS OF FACT 1. On December 13, 2010, the Board issued a decision denying service connection for sleep apnea, to include as secondary to service-connected PTSD. 2. Evidence pertinent to the issue of service connection for sleep apnea, to include as secondary to service-connected PTSD decided in the December 13, 2010 Board decision was obtained subsequent to the Board decision and was not before the Veterans Law Judge when the decision was issued. 3. The Veteran's sleep apnea was not caused or aggravated by his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for vacating the Board decision issued on December 13, 2010 have been met. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2010). 2. The criteria for service connection for sleep apnea, to include as secondary to service-connected PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Vacatur On December 13, 2010, the Board issued a decision in which it adjudicated the appeal as to claim for service connection for sleep apnea, to include as secondary to service-connected PTSD. Evidence pertinent to this issue was received and associated with the record after the issuance of that decision and had not been considered at the time of the decision. An appellate decision may be vacated by the Board at any time upon the request of the appellant or his representative, or on the Board's own motion, when there has been a denial of due process. 38 C.F.R. § 20.904 (2010). The Board's December 2010 decision regarding service connection for sleep apnea, to include as secondary to service-connected PTSD was rendered without consideration of VA outpatient treatment reports which were not associated with the record at the time of the December 2010 Board decision. As such, that decision was not based on consideration of all the available evidence with regard to the service connection issue above. In order to ensure due process, the Board has decided to vacate the December 24, 2008 decision. Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims (Court). This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010). The merits of the issues set forth above are considered de novo in the decision below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such 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 (2010). 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, has been amended. The intended effect of this amendment is to conform VA regulations to the Allen decision, supra. 71 Fed. Reg. 52,744 (Sept. 7, 2006). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. Service treatment reports are absent for any complaint of, or treatment for, sleep disabilities. In a separation report of medical examination from July 1970, the Veteran had normal clinical evaluations of all systems, with the exception of a notation of a scar on the right corner of the Veteran's mouth. In an associated report of medical history, the Veteran himself reported that he did not have nor had ever had frequent trouble sleeping, providing strong factual evidence against this claim. These service treatment records, as a whole, are strong evidence against the Veteran's claim as they tend to show that the Veteran did not have a sleep disability in service. The complete absence of any mention of any of the claimed disability during service is evidence against a grant of service connection on a direct basis. VA outpatient treatment reports indicated that the Veteran underwent a sleep study in March 2006. He was subsequently diagnosed with sleep apnea. This diagnosis came approximately 35 years after separation from service, weighing heavily against the Veteran's claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). In July 2006, the Veteran was afforded a VA examination. There, the examiner was asked to determine whether the Veteran's sleep apnea is related to his service-connected PTSD, specifically, the medications that he takes for his PTSD, Celexa and Diazepam. The examiner indicated his review of the claims file, including the Veteran's psychiatric treatment. In particular, the examiner noted a psychiatric treatment report from April 2006 where the Veteran was cautioned about using Diazepam, as there was potential for sedation or worsening of his sleep apnea with benzodiazepines. The Veteran was subsequently assessed with severe sleep apnea, poor sleep architecture, and nasal airway obstruction. The examiner indicated that there was no note in the Veteran's sleep study, which reported any aggravation or cause of the Veteran's sleep apnea through his periodic use of benzodiazepines. Ultimately, the July 2006 examiner stated, "based on a review of the veteran's claim file, it is this examiner's opinion that it is less likely than not that the veteran's sleep apnea is related to or permanently aggravated by the veteran's service-connected PTSD and use of medications for treatment of this mental condition." The examiner goes further to explain that there is no indication that the Veteran's use of benzodiazepines has aggravated or caused his sleep apnea. Rather, there is only one psychiatric treatment note of a discussion of potential worsening of sleep apnea. In short, the examiner opined that there is "no evidence of any actual cause or aggravation of the veteran's sleep apnea through his use of benzo's which he periodically uses to treat his symptoms of PTSD." In addition, the July 2006 examiner stated that he is unaware of any impact of Citalopram on sleep apnea. This opinion is found to be highly probative evidence against the Veteran's claim for service connection for sleep apnea on a secondary basis. It provides a detailed explanation and is clearly based on a review of the Veteran's history, notwithstanding the fact that the report was undertaken in July 2006 (five years ago), it severely undermines one of the Veteran's current contentions: that medication used to treated his service connected disability causes his sleep apnea. In January 2007, the Veteran's treating physician, Dr. "S.E.," submitted a letter to the RO. He stated that the Veteran's anxiety symptoms and treatment has included a very long term use of benzodiazepines. Dr. S.E. also stated that benzodiazepine medications may have the potential to aggravate obstructive sleep apnea, however attempts to taper or discontinue benzodiazepines with the Veteran have been unsuccessful. He also indicated that the Veteran's psychiatric and sleep related disorders appear complicated and to some extent, inter-related. This letter is marginally in favor of the Veteran's claim for service connection for sleep apnea as it suggests that the medications used to treat the Veteran's PTSD "may have the potential to aggravate" his sleep apnea. In this regard, it is important to note that no one would suggest that medication used to treat PTSD could "never" cause a secondary problem to sleep apnea, therefore, saying that medication used to treatment PTSD "may" have the "potential" to aggravate sleep apnea says nothing of real probative value. The critical question is not whether one problem "may" have caused another problem (no one would suggest that one problem could not possibly cause another problem, that is really not the issue before the Board), but if it is at least as likely as not caused or aggravated by medication used to treatment PTSD. Based on the conflicting opinions, the RO requested a medical opinion by a pulmonary specialist in May 2007. The examiner stated that sleep apnea is caused by the functional anatomy of the airway, which is genetically determined and therefore, is unrelated in cause to medication or to the Veteran's PTSD. The May 2007 examiner explained that benzodiazepines are used in the treatment of sleep apnea, sometimes for initiation of C-PAP therapy, to help the patient fall asleep and become more accustomed to the machine. He stated that they "do not in and of themselves aggravate the cause or progress of sleep apnea." If a patient has untreated sleep apnea, and is naïve to benzodiazepines, then the use of them may initially, for a period of a week or two, cause the apneic spells to be longer than they otherwise would be. Again in November 2008, Dr. S.E. stated, in a submission to the RO, that "[a]lthough benzodiazepine medications are helpful for anxiety, these drugs are less desirable for use with co-morbid sleep apnea given their potential for pharyngeal muscle relaxation and aggravation of obstructive sleep apneas." This statement is similar to the statement he provided in January 2007. An October 2010 VA outpatient treatment report indicated that the Veteran's sleep apnea was evaluated. He again reported problems with sleep disordered breathing and underwent a comprehensive examination of his sleep conditions, to include sleep apnea. The examining physician stated that the Veteran's "daytime sedation and insomnia appears to be multifactorial related to sleep hygiene and medications. [His] residual snoring appears to be related to nasal physiology and rhinitis." Importantly, however, the physician did not opine as to the etiology of the Veteran's sleep apnea specifically, and there was no indication from the treatment report that his sleep apnea was caused or aggravated by his service-connected PTSD or by the specific medications he was taking to treat his PTSD. As such, this treatment report is of little probative value. Again in January 2011, Dr. S.E. stated, in another submission to the RO, that as the Veteran "has comorbid sleep apnea, use of benzodiazepines are less than desirable since they may aggravate sleep apnea. Multiple attempts to discontinue these medications have been unsuccessful." The Board finds that this statement is similar to the statements he provided in January 2007 and November 2008. As discussed above, Dr. S.E. fails to answer the critical question of whether it is at least as likely as not caused or aggravated by medication used to treatment PTSD. Here, the Board finds that the opinions of two VA examiners, one a pulmonary specialist, who have determined that the Veteran's sleep apnea is not caused or aggravated by his service-connected PTSD or the medications taken to treat PTSD, outweigh the opinion of Dr. S.E. The evidence, in this case, is not in equipoise and is against the Veteran's claim for service connection for sleep apnea as secondary to service-connected PTSD. The Board finds that the medical opinions in this case provide overwhelming and highly probative evidence against this claim, not only directly refuting the Veteran's central contention, but clearly indicating the true cause of the Veteran's problem (functional anatomy of the airway, clearly something not caused by PTSD). The Board notes the lay statements and testimony provided by the Veteran and his spouse, particularly during the hearing in October 2010. Both have contended that the medication the Veteran uses to treat his PTSD symptoms have aggravated his sleep apnea. Laypersons, such as the Veteran and his spouse, are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing a diagnosis of a condition when (1) a 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. Id. Similarly, the U.S. Court of Appeals for Veterans Claims has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran and his spouse's contentions regarding a relationship between his claimed disability and his service-connected PTSD are not statements about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis. Rather, these contentions are statements of causation. Such statements clearly fall within the realm of opinions requiring medical expertise. The Veteran and his spouse have not demonstrated any such expertise. Hence, their contentions are not competent medical evidence of the cause of the claimed disability and are entitled to low probative value. In any event, the lay opinions of the Veteran and his spouse are outweighed by the July 2006 and May 2007 VA examiners. Based on the above, the preponderance of the evidence of record is against a grant of service connection for sleep apnea as secondary to service-connected PTSD, and his claim must be 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). Duties to Notify and Assist The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in January 2006, March 2006, and May 2011. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, during the Decision Review Officer (DRO) hearing in October 2008, the Veteran indicated that he was receiving Social Security benefits. However, he also explained that the conditions for which he was receiving Social Security benefits were unrelated to sleep apnea and PTSD. In this regard, the Board notes that the Federal Circuit has recently held that where VA has been informed that the Veteran is on SSA for an unrelated disability, VA's duty to assist does not require review of the entire SSA record. See Golz v. Shinseki, No. 09-7039 (Fed. Cir.) (Jan. 4, 2010). The RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER The Board's decision of December 13, 2010, is hereby vacated. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs