Citation Nr: 1136827 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 09-11 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for sleep apnea. ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The appellant served on active duty from August 1978 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. The appellant submitted a notice of disagreement with this determination in August 2008, and timely perfected his appeal in April 2009. This claim came before the Board in June 2010, at which time it was remanded to the Appeals Management Center (AMC) for additional evidentiary development, to include obtaining a VA respiratory examination. Such development having been accomplished, the claim has been returned to the Board for adjudication. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The appellant has been accorded the opportunity to present evidence and argument in support of the claim. In his April 2009 substantive appeal [VA Form 9] he declined the option of testifying at a personal hearing. FINDING OF FACT The preponderance of the evidence is against a finding that the appellant currently suffers from sleep apnea that is the result of a disease or injury in active duty service. CONCLUSION OF LAW Sleep apnea was not incurred in, or aggravated by, active duty service. 38 U.S.C.A. §§ 1112, 1113, 1116, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. Prior to initial adjudication of the appellant's claim, a letter dated in July 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio, at 187. The July 2007 notice letter also informed the appellant of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2010) (harmless error). In view of the foregoing, the Board finds that the appellant was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The record indicates that the appellant participated in a VA examination in June 2010, and the results from that examination have been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the appellant, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. Additionally, the Board finds there has been substantial compliance with its June 2010 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC scheduled the appellant for a medical examination and the appellant attended that examination. The AMC later issued a supplemental statement of the case in June 2011. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2010). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The appellant has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the appellant has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. The Merits of the Claim The appellant contends that he currently suffers from sleep apnea as a result of his time in active duty service. The Board disagrees. Governing Law and Regulations Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2010). In order to establish service connection on a direct basis, there must be (1) medical 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2010). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2010); see also Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). In Voerth v. West, 13 Vet. App. 117, 120 (1999), the Court stated that in Savage it had clearly held that 38 C.F.R. § 3.303 does not relieve the claimant of his burden of providing a medical nexus. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). ("Although interest may affect the credibility of testimony, it does not affect competency to testify.") When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. See 38 U.S.C.A. § 5107(b) (West 2002). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt, which exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102 (2010). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, supra. Analysis It is undisputed that the appellant currently suffers from obstructive sleep apnea. See, VA Respiratory Examination Report, June 28, 2010. Hickson element (1), current disability, is accordingly satisfied. With respect to Hickson element (2), in-service disease or injury, the Board notes that a March 1978 pre-induction examination found the appellant to be in good health. See Standard Forms (SF) 88 & 93, Service Induction Examination Reports, March 27, 1978. Further, the appellant himself indicated that he did not suffer from asthma, shortness of breath, or frequent trouble sleeping. See SF 93, Service Induction Examination Report, March 27, 1978. In August 1978, the appellant was seen with complaints of watering eyes, stuffed up nose, sore throat and cough. The examiner diagnosed him with a cold. See Service Treatment Record (STR), August 31, 1978. In November 1981, the appellant was seen with complaints of difficulty breathing at night for the prior six days. Upon examination, the appellant's chest sounds appeared normal and the back of his throat was clear. He was noted to have mild to moderate post-nasal discharge of clear mucus, and was provided with Sudafed. A specific diagnosis was not rendered. See STR, November 4, 1981. In February 1982, the appellant was seen with complaints of a stuffy nose and scratchy throat. Upon examination, the appellant was noted to have a slightly swollen sinus membrane. His tonsils were swollen and slightly red. The assessment was to rule out an upper respiratory infection. See STR, February 1, 1982. Based upon the appellant's November 1981 complaints of difficulty breathing at night, the Board will afford the appellant the benefit of the doubt, and conclude that element (2) under Hickson has been satisfied. See Hickson, supra. Turning to crucial Hickson element (3), nexus, the Board notes that the only medical evidence of record consists of the June 2010 VA respiratory examination report. The appellant stated that in 2005, his wife had noticed him having difficulty breathing at night and requested that he seek medical attention. Accordingly, a sleep study in July 2005 diagnosed obstructive sleep apnea. Upon physical examination of the appellant, the VA examiner noted that the appellant had been markedly obese for the past 20 years. He weighed 170 pounds (lbs) during his time in service, and at the time of the examination weighed 293 lbs. His neck measured 18 inches and his tonsils were enlarged. Upon review of the appellant's STRs and the appellant's VA claims file, the VA examiner opined that it was less likely than not that the appellant's currently diagnosed obstructive sleep apnea was the result of his time in active duty service. The VA examiner noted the appellant's 1979 and 1981 in-service complaints, but found that these were not indicative of sleep apnea, but rather of sinus trouble. The VA examiner opined that the etiology of the appellant sleep apnea was related to increased airway pressure from surrounding soft tissues as a result of his obesity. Further, it was noted that enlarged tonsils could also make this condition worse. However, the appellant's body habitus size predisposed him to sleep apnea. While the exact date of onset could not be determined, the VA examiner noted that it was more likely that this began in more recent years, given the appellant's wife's request to have him seek medical attention. The only evidence in support of the appellant's claim consists of his lay statements. The Board acknowledges that the appellant is competent to give evidence about what he experiences; for example, he is competent to discuss his trouble breathing at night and his resulting fatigue. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). Here however, the Board finds that the appellant's lay statements are outweighed by the negative service, post-service treatment records (indicating sleep apnea that began many years after service), and the negative VA medical opinion cited above. Further, the appellant is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Although the appellant has established that he currently suffers from obstructive sleep apnea, the evidence of record does not support a finding that this condition is the result of his time in service. The appellant's claim fails on the basis of element (3) of Hickson. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs