Citation Nr: 1300413 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-29 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran, spouse, and A.L. ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2011, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge at the Waco RO. A transcript of the hearing is associated with the Veteran's claims file. In December 2011, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the RO in the most recent supplemental statement of the case (SSOC). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not manifest obstructive sleep apnea symptoms in service. 2. Symptoms of obstructive sleep apnea were not continuous after service separation, and did not manifest for many years after separation from service until 2007. 3. Obstructive sleep apnea is not caused by or permanently worsened in severity by posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The Veteran's obstructive sleep apnea was not incurred in or aggravated by active service or a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by the December 2007 letter. In the letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. The Veteran was also informed of the criteria for establishing a claim for secondary service connection in a December 2009 VCAA letter. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had to obtain any records held by any federal agency. The letters also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the RO told the Veteran that he could obtain private records himself and submit them to VA. 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. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the December 2007 VCAA letter included the type of evidence necessary to establish a disability rating and effective date for the disability on appeal. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West Supp. 2011); 38 C.F.R. § 3.159 (2012). In connection with the current appeal, VA has obtained the Veteran's service treatment records, private medical records, and VA outpatient treatment records. The Veteran was also provided with a VA examination for his claimed disability. The VA examiner reviewed the Veteran's medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board finds that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) (West Supp. 2011); 38 C.F.R. § 3.159(d) (2012); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Decision The Veteran contends that his obstructive sleep apnea is related to his active military service. At the July 2011 Board hearing, the Veteran testified that he started snoring loudly and choking in his sleep approximately in 1978 while in service. See the Board hearing transcript, p. 15. Since that time, the Veteran asserts that he has endured obstructive sleep apnea and service connection is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2012). The amendment sets forth language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the clam or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After review of all the evidence of record, lay, and medical, the Board finds that service connection for obstructive sleep apnea is not warranted on a direct basis. The Veteran's service treatment records are silent regarding any injury, complaints, treatment, or diagnosis relating to obstructive sleep apnea. Upon discharge from service, the Veteran reported no problems related to sleeping on his May 1991 report of medical history. The record also demonstrates no continuity of symptomatology from service separation to the present time. Rather the evidence shows complaints and treatment for obstructive sleep apnea, beginning in July 2007, nearly 16 years after separation from service. Specifically, a private sleep study was conducted in July 2007. The Veteran complained of non-restorative sleep, excessive daytime sleepiness, initial insomnia, maintenance insomnia, fatigue, morning headaches and secondary insomnia due to pain. After testing, the private physician noted that the Veteran demonstrated mild obstructive hypopneas and mild snoring. In March 2008, the Veteran was assessed with severe obstructive sleep apnea with REM sleep component and significant oxygen desaturation. See the March 2008 VA outpatient treatment note. Treatment records thereafter continue to reflect treatment for obstructive sleep apnea. Such a prolonged period from service separation until July 2007 without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges that the Veteran is competent to give evidence about what he has experienced; for example, he is competent to discuss his current symptomatology and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). It is acknowledged that the Veteran has asserted throughout this appeal that he incurred his current obstructive sleep apnea in service. He asserts that he has endured continuing problems revolving around his sleep pattern since service. Thus, his statements can be construed as alleging a continuity of obstructive sleep apnea since his military service. However, the Board finds that the allegations of continuity are not credible. The Veteran's service treatment records are negative for any findings related to sleep problems and obstructive sleep apnea. Additionally, while post-service VA and private treatment records reflect treatment for obstructive sleep apnea, the treatment records make no mention of the Veteran's obstructive sleep apnea being attributable to his military service. These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). As such, continuity of symptomatology has not been established, and the Veteran's testimony regarding his disability, standing alone, is not sufficiently credible to provide probative information. The Board further finds that the weight of the evidence demonstrates that the Veteran's current obstructive sleep apnea is not related to the Veteran's active service. In January 2012, the Veteran was afforded a VA examination to determine the etiology of the obstructive sleep apnea. The Veteran indicated that his sleep disorder began in November 1999, but he did not inform physicians of it until June 2000. After a review of the claims file and diagnostic testing, the VA examiner diagnosed the Veteran with obstructive sleep apnea. The VA examiner concluded that the Veteran's sleep apnea "less likely than not" began in service because service treatment records fail to show any sleep apnea related symptoms. The VA examiner explained that the Veteran's obstructive sleep apnea is more likely than not related to his debilitating underlying morbid medical conditions, which include advanced diabetes mellitus with peripheral neuropathy and chronic kidney failure. He noted that the relationship between the Veteran's sleep disorder and the two medical disorders have been recognized by current medical literature. See the October 2012 addendum VA opinion. There is no contrary medical opinion or medical evidence in the record, and neither the Veteran nor his representative has identified or alluded to such medical evidence or opinion. The VA examination report clearly states that the Veteran's claims file was available and reviewed. The VA examiner reviewed the Veteran's subjective history, clinical findings, and rendered an opinion with supportive rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board considers the VA opinion adequate, and service connection for obstructive sleep apnea must be denied. To the extent that the Veteran claims his obstructive sleep apnea is caused by his PTSD, the Board notes that the Veteran is not service connected for PTSD. Such attempted theory of secondary service connection where the claimed aggravating disability is not service connected must be denied as a matter of law. 38 C.F.R. § 3.310. The Board recognizes the sincerity of the arguments advanced by the Veteran that his obstructive sleep apnea is related to his military service. The Board also acknowledges the submitted statements and testimony of the Veteran's wife, who attest to the fact that the Veteran had sleeping problems in service and complained of such thereafter. The resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. It is true that lay statements may be competent 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), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, obstructive sleep apnea requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. Neither the Veteran nor his wife has any specialized training in this regard. Thus, the Board rejects their assertions claiming a nexus to service. Accordingly for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea, to include as secondary to PTSD, and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD) is denied. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs