Citation Nr: 1242301 Decision Date: 12/11/12 Archive Date: 12/20/12 DOCKET NO. 08-18 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as lung condition. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to May 1983, December 1990 to July 1991, and May 2004 to August 2005. Service in Southwest Asia is indicated by the record. The Veteran is the recipient of the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the Veteran's claims. In February 2009, the Veteran presented sworn testimony during a formal RO hearing in Indianapolis, Indiana. A transcript of the hearing has been associated with the Veteran's VA claims file. In an April 2010 Board decision, the claims were remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denials in a March 2011 supplemental statement of the case (SSOC). In June 2011, the Board again remanded the Veteran's claims. A SSOC was issued in May 2012. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, he has COPD that is as likely as not related to his military service. 2. Resolving reasonable doubt in favor of the Veteran, he has sleep apnea that is as likely as not related to his military service. CONCLUSIONS OF LAW 1. COPD was incurred in the Veteran's active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2012). 2. Sleep apnea was incurred in the Veteran's active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the favorable action taken herein with regard to both claims on appeal, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War and who exhibit objective indications of chronic disability manifested by one or more specific signs or symptoms, such disability may be service connected provided that it became manifest during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016; and provided that the disability cannot be attributed to any known clinical diagnosis. See 38 U.S.C.A. §§ 1117 (West 2002); 38 C.F.R. § 3.317(a)(1) (2012). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. See 38 C.F.R. § 3.317(a)(2) (2012). Here, the Veteran asserts that he has COPD and sleep apnea, which were incurred in his active military service. See, e.g., the February 2009 RO hearing transcript. The Board has thoroughly reviewed the record and finds that the evidence supports a finding that the Veteran's currently diagnosed COPD and sleep apnea were incurred during his active duty service. As indicated above, the Veteran had three periods of active duty service from January 1983 to May 1983, December 1990 to July 1991, and from May 2004 to August 2005. The record demonstrates that, during his second period of active service, the Veteran served in Southwest Asia from December 1990 to June 1991. During his third period of active service, the Veteran was deployed to Afghanistan from July 2004 to July 2005 and received the Combat Action Badge. The Board has thoroughly reviewed the evidence of record, including the Veteran's service treatment records (STRs), as well as, VA and private treatment records. To this end, the Board recognizes that the Veteran was likely exposed to oil fires and other forms of environmental pollution during both his second and third periods of active duty. As indicated above, the Veteran was discharged from his second period of active duty in July 1991. Private treatment records dated September 1994, August 1995, May 1996, January 1997, and March 2000, documented pulmonary function testing with depressed flow rates, which doctors felt indicated "possible early stage mild obstructive deficiency." Pulmonary function testing conducted in August 2002 showed a mild obstructive defect. A private treatment record dated September 2002 noted a possible diagnosis of reactive airway disease. With respect to the claimed sleep apnea, the Veteran underwent sleep studies in October 1998 and December 1998, which revealed a diagnosis of sleep apnea. Critically, although the interim treatment records documented a possible obstructive deficiency in the Veteran's lungs, and, a diagnosis of sleep apnea, the Veteran's pre-deployment health assessment for his third period of service was absent any indication of chronic lung or sleep problems. As noted above, a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). In this matter, despite the evidence of possible lung impairment and sleep apnea prior to the Veteran's third period of active duty service, his April 2004 reenlistment/pre-deployment health assessment documented his report of 'very good' health and did not indicate that he suffered from any chronic lung or sleep impairment. Accordingly, the competent medical evidence of record supports a finding that the Veteran was sound upon his entrance into his third period of active duty service. Thus, the presumption of soundness has not been rebutted. See 38 U.S.C.A. § 1111 (West 2002); see also Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b) (2012). The Veteran has asserted that he experienced lung and sleep problems during his deployment to Afghanistan. See the February 2009 RO hearing transcript. STRs dated January 2005 noted a history of sleep apnea. Additionally, the Veteran's July 2005 post-deployment assessment documented his report of difficulty breathing and sleep apnea during his deployment. The Veteran also reported exposure to smoke from oil fires, smoke from burning trash or feces, vehicle or truck exhaust fumes, tent heater smoke, JP8 or other fuels, solvents, industrial pollution, and sand/dust. Moreover, as to the claimed sleep apnea, post-service treatment records dated August 2006 documented a diagnosis of sleep apnea. VA treatment records dated January 2007 and February 2007 noted the Veteran's sleep problems as well as a continuing diagnosis of sleep apnea. With respect to the claimed COPD, post-service treatment records dated December 2006 confirmed a continuing diagnosis of COPD. VA treatment records dated February 2007 noted the Veteran's past medical history of breathing problems. An October 2008 treatment record also documented a continuing diagnosis of COPD. VA treatment records dated February 2009 noted that pulmonary function testing showed an obstructive defect. VA treatment records dated May 2010 confirmed a diagnosis of COPD. Accordingly, based upon the medical evidence of record demonstrating continuing diagnoses of COPD and sleep apnea, the Board finds that the Veteran's respiratory and sleep disorders are attributable to known clinical diagnoses and, therefore, the provisions of 38 C.F.R. § 3.317 relating to undiagnosed illness of Persian Gulf veterans are not for application. The Veteran was afforded a VA examination in July 2010 as to his COPD and sleep apnea claims. The examiner interviewed and examined the Veteran, reviewed his medical history, and confirmed the diagnoses of COPD and sleep apnea. The examiner concluded that "[i]t is less likely than not that the Veteran's sleep apnea was caused by or is aggravated by his active duty service. It is at least as likely as not that the Veteran's COPD was caused by or aggravated by his active duty service." The examiner explained, "[t]he above opinion is based on current medical literature which documents oral appliances as corrective treatment for sleep apnea, and report by the Veteran that this did relieve his symptoms. The opinion relating to his lung condition is based on his active duty records and during which time he was likely exposed to environmental airborne respiratory irritants." As indicated above, in the June 2011 decision, the Board remanded both claims for an addendum medical opinion based upon the VA examiner's failure to provide sufficient rationale to support the conclusions expressed in her July 2010 examination report. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (examiners must support their conclusions with analysis and clinical data) & Hernandez-Toyens v. West , 11 Vet. App. 379, 382 (1998) (the failure of a physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). Unfortunately, the VA addendum opinion obtained in July 2011 was largely contradictory and nonsensical. Specifically, the examiner indicated that "[i]t is at least as likely as not that any respiratory symptoms the Veteran has are due to his deployment to the Middle East and exposure to fumes from burn pits. However, review of his records shows that x-rays and pulmonary function testing did not support a diagnosis of COPD and there has not been any treatment for any chronic obstructive lung condition. Also current literature is stating that exposure to burn pit fumes are more likely to cause a condition like a bronchiolitis, which would also give a negative chest x-ray and pulmonary function test." The examiner continued, "[a]s for the sleep apnea, it is noted that the Veteran was never diagnosed with sleep apnea and that he reported resolution of symptoms with a dental appliance. Obstructive sleep apnea is a condition related to nuchal obesity." The examiner concluded, "the Veteran's respiratory issues likely would be related to his exposure to burn pit fumes but are not actually chronic obstructive pulmonary disease. Also, the Veteran was never diagnosed with obstructive sleep apnea per sleep studies, and his symptoms of snoring and sleep interruption was relieved with a dental appliance." As noted by the Veteran's representative in the November 2012 Informal Hearing Presentation, the July 2011 addendum opinion is largely contradictory of the evidence of record, which documents continuing and confirmed diagnoses of COPD and sleep apnea. Moreover, as previously explained in the Board's June 2011 decision, the fact that a dental appliance may relieve sleep apnea symptoms does not mean that the Veteran does not have a disability for rating purposes. C.f., Nieves-Rodriguez, supra; Stefl, supra. Crucially, in contrast, the Veteran has provided substantial evidence of continuity of symptomatology including the medical evidence outlined above as well as lay statements in which he contends that he has had COPD and sleep apnea symptomatology since his third period of active military service. In this regard, the Board notes that the Veteran is competent to describe what he experienced in service; such as, difficulty breathing and sleeping. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398,403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 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. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); & Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.") Here, the Veteran provided multiple statements concerning his COPD and sleep apnea including continued symptomatology dating from his in-service complaints to the present time. As previously discussed herein, the Veteran is competent to report his experiences and symptoms in service. The Board also finds the Veteran's statements with respect to his continuity of symptomatology to be credible. In considering the evidence of record, the Board finds that the Veteran's currently diagnosed COPD and sleep apnea cannot reasonably be disassociated from his credible reports of in-service breathing and sleep difficulties. Moreover, as indicated above, it is undisputed that the Veteran was exposed to environmental toxins including oil fire smoke, sand, and dust during his active duty deployments. Of further significance to the Board in this matter are the Veteran's competent and credible assertions that he has continued to experience COPD and sleep apnea symptomatology since his discharge from service. Further, his assertions as to his continued symptoms are supported by the medical evidence of record which shows documented treatment for pertinent complaints within one year of his military discharge as to the sleep apnea, and a continuing diagnosis of COPD less than a year and a half following his August 2005 active duty discharge. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that it is as likely as not that he currently has COPD and sleep apnea that were incurred during his active duty. Service connection for COPD and sleep apnea are, therefore, warranted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for COPD is granted. Entitlement to service connection for sleep apnea is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs