Citation Nr: 1134859 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 07-27 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction, to include on a secondary basis. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran had active duty service from December 1961 to April 1966 and from December 1970 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in December 2006 and July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The December 2006 rating decision, in pertinent part, denied service connection for erectile dysfunction and the July 2008 rating decision, in pertinent part, denied service conncection for sleep apnea. In April 2010 the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO (Travel Board hearing). A copy of the transcript of that hearing is of record. When the case was last before the Board in June 2010, the issues currently before the Board were remanded for additional development. Additionally, the issue of entitlement to service connection for hypertension was remanded. However, in a May 2011 rating decision, service connection for hypertension was granted. As this represents a total grant of benefits sought on appeal, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). FINDINGS OF FACT 1. The competent credible evidence of record shows that the Veteran has no confirmed diagnosis of sleep apnea that is etiologically related to service or service-connected disability. 2. The competent credible evidence of record shows that the Veteran's erectile dysfunction is at least as likely as not secondary to his hypertension medications. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by active service, nor is it proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a) (2010). 2. Erectile dysfunction is proximately due to or the result of service-connected hypertension. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.310(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Board notes that in letters dated in May 2006, June 2007, July 2007, November 2007, June 2010, and August 2010, the RO and the Appeals Management Center provided notice to the Veteran regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. Additionally, the May 2006, June 2007, and July 2007 notice letters informed the Veteran as to disability ratings and effective dates. Because the notice pursuant to Dingess came before the initial adjudication of each claim, the timing of the notice complied with the requirement that the notice must precede the adjudication. Thus, the Board concludes that the duty to notify has been met. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, and VA examination reports. Also of record and considered in connection with the appeal are various written statements submitted by the Veteran and his representative. Finally, the Veteran had an opportunity to provide testimony before the undersigned at a Travel Board hearing, as well as before a Decision Review Officer. Finally, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its June 2010 remand. Specifically, the RO was instructed to ask the Veteran to identify all health care providers who have treated him for his disabilities at issue and obtain records from the identified providers; and provide the Veteran with current VA examinations to determine the etiology of the disabilities, with inclusion of any necessary tests or studies. The Board finds that the RO has complied with these instructions and the VA examination reports substantially complies with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying pertinent medical evidence and submitting evidence. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Governing Laws and Regulations for Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for an injury, the Court generally requires a veteran to show (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the Veterans Court requires a veteran to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. Lay evidence can be competent and sufficient to establish 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. A disability can also be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The Board notes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Thus, the Board will address service connection for all issues on both a direct and secondary basis in this appeal. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Sleep Apnea The Veteran has claimed entitlement to service connection for sleep apnea because it is due to his diabetes mellitus. With respect to the claim on a direct basis, the Board notes that the service treatment records for both periods of active service are negative for findings or complaints related to sleep apnea. The March 1966 separation examination report is negative for sleep apnea. The October 1976 separation examination report is also negative for sleep apnea. The October 1976 report of medical history for separation purposes reflects that the Veteran denied frequent trouble sleeping. The post-service medical evidence includes a May 2005 VA treatment record that notes that the Veteran was recently diagnosed with diabetes mellitus. A June 2005 VA examination report is silent with regard to sleep apnea or related complaints or findings. A May 2006 letter from a VA health care provider (an Advanced Practice Registered Nurse) notes that the Veteran has been treated for erectile dysfunction, which was noted to be due to diabetes. It is silent with regard to sleep apnea or related complaints or findings. A March 2006 VA treatment record notes that the Veteran was an obese patient who has gained 30 pounds since 2005. An April 2006 VA outpatient treatment report contains a list of the Veteran's prior medical history, which did not include sleep apnea. It was noted that the Veteran complained of insomnia. A June 2006 VA examination report notes a prior medical history which does not include sleep apnea. A November 2006 VA pulmonary outpatient initial consult note indicates that the Veteran was referred for evaluation of obstructive sleep apnea (OSA). It was noted that he sleeps at approximately 11pm with no difficulty falling asleep. He wakes up every hour to every two hours to urinate and wakes up around 7am to start his day. He does not feel refreshed in the morning and feels drowsy during the day. He nods off for a few minutes then wakes up during the day. He snores but there are no witnessed apneas. A September 2006 chest X-ray study showed no evidence of acute cardiopulmonary process. The assessment was "likely OSA" and possible obesity hypoventilation syndrome (OHS). He was recommended to start auto set CPAP machine. A November 2006 VA addendum report notes that there was a high clinical suspicion for OSA. It was also noted that he may have alveolar hypoventilation based on baseline high carbon dioxide level recently. Another November 2006 VA treatment record notes that the Veteran had an appointment to get a CPAP machine. A February 2007 letter from the Veteran's treating VA Advance Practice Registered Nurse notes that the Veteran has erectile dysfunction due to diabetes. There is no mention of sleep apnea. A May 2007 letter from a VA Advanced Practice Registered Nurse notes that the Veteran is being treated for severe sleep apnea, which developed after weight gain that was associated with Type II diabetic medications. VA treatment record dated in March 2008 notes that the Veteran has obstructive sleep apnea and is on a CPAP machine. An October 2008 VA treatment record notes that the Veteran indicated that he was no longer using the CPAP machine since his weight loss. He denied daytime somnolence, snoring, and sleep disturbances. He indicated that he sleeps 12 hours a night. The assessment list noted that the Veteran was not interested in wearing the CPAP mask and he stated that he is symptom free since losing weight. A November 2008 VA treatment record notes that the Veteran no longer uses his CPAP machine since his weight loss. His sleep apnea symptoms were noted to be better after initiation of CPAP; however, he still has daytime sleepiness. He refused to have a formal sleep study done. A February 2009 VA treatment record notes that the Veteran formerly had OSA but was no longer using his CPAP due to significant weight loss. In written correspondence dated in July 2009, a VA Advanced Practice Registered Nurse reported that the Veteran was diagnosed with sleep apnea after having gained weight due to treatment of his diabetes. Therefore, it is reasonable to state that his sleep apnea is secondary to his diabetes. Additional correspondence dated September 2009, a VA Advanced Practice Registered Nurse notes that the Veteran suffers from sleep apnea. It was also noted that his diabetes and treatment for his diabetes has contributed greatly to his medical problems including obesity and sleep apnea. An August 2010 VA examination report notes that the Veteran indicated he feels his obesity is causing his sleep apnea. It was noted that the Veteran was diagnosed with sleep apnea on the basis of snoring and daytime drowsiness. He had refused a sleep study. The Veteran indicated that his symptoms included difficulty sleeping at night and difficulty breathing laying flat in the bed. When he uses the CPAP machine he feels better when he wakes up. He stated that he uses the CPAP every night and he gets four to five hours of sleep. He reportedly chokes with breathing if he does not use the machine. It was noted that VA treatment records from April 2005 indicate a long history of obesity. He was diagnosed with diabetes mellitus type II on April 29, 2005. The examiner reviewed the claims file in its entirety and opined that there is no current confirmed diagnosis of sleep apnea. Presumptive OSA was diagnosed by VA Pulmonary Clinic based on the Veteran's symptoms; however, no sleep study has been performed. The examiner opined that while sleep apnea likely impacts blood pressure and glucose control, there is no current evidence that blood pressure and glucose control affect sleep apnea. The examiner also noted that the Veteran has had longstanding obesity even prior to his presumptive OSA diagnosis and independent of his diabetes medication. Based upon a review of the evidence of record, the Board finds that service connection for sleep apnea is not warranted. Regarding the claim on a direct basis, there is no evidence in the service treatment records of any sleep apnea. Moreover, there is no evidence of a confirmed diagnosis of sleep apnea at any time during the period of the claim. The Board notes that, in the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the August 2010 VA examination report shows that the Veteran has never had sleep apnea confirmed by a sleep study. The only evidence of a sleep apnea diagnosis is a presumptive diagnosis based upon the Veteran's self-reported symptoms. The Veteran was prescribed a CPAP machine as a result of the presumptive diagnosis and it did help his reported symptoms; however, it was noted that his symptoms disappeared upon weight loss and he discontinued using the CPAP machine. The Board acknowledges that the Veteran has submitted several letters from the same VA Advanced Practice Registered Nurse, which indicate that he is in receipt of VA care for sleep apnea which is due to his diabetes, diabetic medication, and/or associated weight gain. However, this information is not based upon a study confirming the diagnosis of sleep apnea, nor is it confirmed by the VA treatment records. None of the VA treatment records reflect any connection between the sleep apnea and the diabetes or any other service-connected disability. Assuming the Veteran has a confirmed diagnosis of sleep apnea, which he does not, there were no complaints or findings of sleep apnea until November 2006, which is about 30 years after discharge. Moreover, there is no indication that any current sleep apnea is etiologically related to military service. The Veteran also does not claim that there is any connection between sleep apnea and service. As such, the claim is denied on a direct basis. The Board notes that a VA examination or opinion is necessary if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the veteran's service or other service-connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no evidence in the service treatment records of any complaints or findings with respect to sleep apnea, and there is absolutely no post-service medical evidence which suggests that any current sleep apnea is in any way related to the Veteran's military service. Instead, as noted above, the evidence does not include any diagnosis of sleep apnea confirmed by a sleep study. Therefore, no VA examination is warranted for an opinion regarding the claim on a direct basis. In this case, there is no evidence, not even the Veteran's own statements, which links any presumptive diagnosis of sleep apnea based upon symptoms and without confirmation of a sleep study to service. In any event, the Board notes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Although the Veteran is competent to report that he has experienced sleep apnea symptoms since military service, he has not done so and the evidence fails to support such a theory. As noted above, service treatment records make no mention of sleep apnea. Further, sleep apnea was not diagnosed when the Veteran was examined for service separation. A presumptive diagnosis of sleep apnea was initially documented approximately three decades after his service separation, and no opinion linking this condition to military service has been presented. In this regard, the presumption of in-service incurrence is not for application. 38 U.S.C.A. §§ 1101, 1112(a)(1); 38 C.F.R. §§ 3.307(a)(3), 3.309. Further, the Federal Circuit Court has held that such a lengthy lapse of time between the alleged events in service and the initial manifestation of relevant symptoms after service is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). With respect to the claim on a secondary basis, the Board notes initially that there is no confirmed diagnosis of sleep apnea. Regardless, even if there were such a confirmed diagnosis, the Board finds that the evidence weighs against the claim on a secondary basis. The Board acknowledges the numerous letters from the VA nurse who wrote on behalf of the Veteran's claim, stating that she treated him for sleep apnea, which is due to his diabetes, treatment for diabetes, and/or weight gain as a result of diabetes. The Board notes that these letters are in favor of the claim on a secondary basis. However, the Board finds these letters less probative than the August 2010 VA examination report, which notes that the Veteran has refused a sleep study and thus, he has never been formally diagnosed with sleep apnea. The August 2010 examination report also notes that there is no medical evidence showing that glucose control, i.e., diabetes, impacts sleep apnea. The examiner did note that sleep apnea impacts blood pressure and glucose control. Also noted was that the Veteran has had longstanding obesity even prior to his presumptive OSA diagnosis and longstanding obesity prior to his diabetes mellitus medications. In contrast, the VA nurse's letters do not contain any rationale for the opinions given. In fact, the July 2009 letter incorrectly states that the obesity began as a result of the diabetes medications. The August 2010 VA examiner pointed out that obesity was diagnosed prior to or concurrent with diabetes. The Board notes that the weight of a medical opinion is diminished where that opinion is ambivalent based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, the Board concludes that the opinions contained in the letters from the VA Advanced Practice Registered Nurse are of limited probative value and are not sufficient to raise a reasonable doubt. In sum, service connection for sleep apnea is not warranted because there is no confirmed diagnosis of sleep apnea at any point during the claim. In addition, the Board finds that although there is a presumptive sleep apnea diagnosis based upon the Veteran's self-reported symptoms, it was not present during service or until many years thereafter, and the most probative medical opinion of record, that of the August 2010 VA examiner, is against the claim. Accordingly, service connection is not in order for sleep apnea. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b). II. Erectile Dysfunction The Veteran claims that he is entitled to service connection for erectile dysfunction because it is due to his diabetes mellitus. A May 2006 letter from a VA health care provider (an Advanced Practice Registered Nurse) notes that the Veteran has been treated for erectile dysfunction, which was noted to be due to diabetes. A June 2006 VA examination report notes that the Veteran has erectile dysfunction, which the examiner opined is "as likely as not secondary to commonly reported medication side effects from Tamsulosin and Finasteride, as well as Hydrochlorothiaze and Lisinopril." The examiner stated that the erectile dysfunction is not established as secondary to the diabetes mellitus. A June 2007 VA treatment record notes that the Veteran's erectile dysfunction is related to his long standing diabetes mellitus, hypertension, hyperlipidemia and smoking. The August 2010 VA examination report notes that at the June 2006 VA examination, the Veteran reported erectile dysfunction beginning in 1996. Thus, the examiner stated that the erectile dysfunction predated the diabetes. The examiner noted that both obesity and alcohol abuse result in low testosterone levels which likely have resulted in the erectile dysfunction. The examiner opined that the erectile dysfunction is less likely related to the diabetes mellitus type II. After review of the evidence of record, the Board finds that the competent evidence of record reflects that the Veteran's erectile dysfunction is at least as likely as not etiologically related to his service-connected hypertension and the medication taken for treatment. (In a June 2011 rating decision, service connection for hypertension was granted.) The Board finds that the June 2006 VA examination was thorough and the examiner supported the opinion given. There is no evidence against the claim on this basis. Although the June 2006 VA examiner attributed the erectile dysfunction to alcohol abuse and obesity, there is no evidence indicating that the erectile dysfunction is not at least as likely as not etiologically related to hypertension. As such, service connection for erectile dysfunction is granted on a secondary basis. ORDER Service connection for sleep apnea is denied. Service connection for erectile dysfunction is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs