Citation Nr: 1300636 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-11 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for sleep apnea, including as secondary to service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1968 and from November 1970 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran was scheduled to testify before a member of the Board appearing at his local RO in November 2010. The record shows he failed to report. However, a statement from the Veteran received in October 2010 by the RO and later associated with the claims file reflects that the Veteran had withdrawn his request for hearing. The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's sleep apnea did not have onset during service, within one year of separation from service, and is not otherwise related to service, to include as secondary to his service-connected diabetes mellitus type II. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 , 3.304, 3 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted 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(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may also be established, under 38 C.F.R. § 3.310(a), for non-service-connected disability which is aggravated by service connected disability. "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. In such instance, a veteran may be compensated for the degree of disability over and above the degree of disability which existed prior to the aggravation of the non-service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective from October 10, 2006, 38 C.F.R. § 3.310 was amended. See 71 Fed. Reg. 52,744 (2006). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of requiring the establishment of a baseline level of disability for the non-service-connected condition prior to the claimed aggravation. Regardless, based upon the facts in this case, neither version is more favorable, and the regulatory change does not affect the outcome herein. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Notably, in a March 2012 statement, the Veteran clarified that he is not seeking service connection for sleep apnea on a direct basis as his condition developed after his discharge from duty. However, the Board will still review prior records to determine whether there is a nexus between sleep apnea and service. In this case, service treatment records (STRs) do not show chronic sleep problems during service. A February 1985 report of medical history shows report of frequent trouble sleeping; however, the signing medical provider did not indicate a diagnosis or sleep related problem. An August 1985 record shows treatment for stress management and indicates a history of sleep disturbance, but no current sleep problem was reported. The report of medical history completed at retirement shows he indicated "no" to the question of whether he had frequent trouble sleeping. No sleep problems were noted on the examination report. Consequently, the Board finds the evidence does not show that a chronic sleep disorder, such as sleep apnea, had onset during service and as such, finds that service connection based on chronicity must be denied. Moreover, the evidence does not show the onset of a sleep disorder within one year of separation of service, thus service connection on a presumptive basis must also be denied. 38 C.F.R. § 3.303(b). The first indication of a sleep disorder is dated in 2007, which weighs against a finding of service connection based on continuity of symptomatology. 38 C.F.R. § 3.303(b). Further, none of the treatment records dated subsequent to service indicate a direct nexus between service an sleep apnea. Therefore, based on the foregoing, the Board finds that service connection for sleep apnea is not warranted on a direct basis. 38 C.F.R. § 3.303(b) and (d). Since service connection on a direct basis and is not warranted, the Board must consider entitlement to service connection as secondary to his service connected diabetes mellitus, type II (diabetes). Evidence favoring the Veteran's claim includes a December 2007 letter from his family practitioner, J.L.W., D.O. (Dr. J.W.), which notes that his diabetes has required increased doses of insulin due to his body's loss of sensitivity to the hormone. He stated that as in this case, the body produces more insulin requiring even more insulin to be administered to control blood sugar. Insulin has added to his problem of being overweight, to the point of obesity, which has caused obstructive sleep apnea. The Veteran had a VA examination in May 2008. The examiner reviewed the claims file, examined the Veteran, and provided a detailed examination report with opinions supported by rationale; therefore, the Board finds the report adequate for rating purposes. During the examination, the Veteran reported a twenty year history of diabetes and said he has been using insulin for about fifteen years. Sleep apnea was diagnosed in 2007. He reported a 50 pound weight gain over the prior six months due to an increase in insulin. While the Veteran noted a fifteen year history of insulin use, the examiner found that use started between 2001 and 2003 and that he had gained only 34 pounds since that time. Further, according to medical literature, a weight gain of about 11 pounds is suggested when patients start intensive insulin regimens. Medical literature does not suggest that beginning an insulin regimen would produce a large weight gain. The examiner said the Veteran suffered obesity prior to initiation of insulin and that insulin alone does not contribute to large weight gains, as in the Veteran's case. She opined that the sleep apnea is more likely than not secondary to his obesity but that his obesity is not secondary to the initiation of insulin use. Consequently, she found it is less likely than not that the Veteran's sleep apnea is secondary to his diabetes. She did not provide an opinion regarding the relationship, if any, between his sleep apnea and other service-connected disabilities; however, this examination report clearly weighs against a finding of causation or aggravation of sleep apnea by his service-connected diabetes. Favoring the Veteran's claim is a September 2008 letter from Dr. J.W. indicating that his diabetes has a negative effect on the micro and macro vascular system and the autonomic nervous system and can damage multiple organs. Therefore, he found it more likely than not that the condition contributes to his problems with sleep apnea. In his July 2008 notice of disagreement and April 2009 substantive appeal, the Veteran said his primary care provider has treated him for years and provided a link between diabetes and his sleep apnea. He also said his insulin, used to control his diabetes, added to his obesity problem which is one of the causes of his sleep apnea. The Veteran had a VA examination in April 2012. The examiner reviewed the claims file, examined the Veteran, and provided a detailed examination report; therefore, the Board finds the report adequate for rating purposes. During the examination, the Veteran said his sleep problems had onset in the 1970s with snoring and daytime fatigue. He said he was too busy to seek treatment in service and eventually sought treatment in 2007 after hearing that other veterans were receiving compensation for similar symptoms. Generally, a layperson is competent to report onset of symptomatology that is readily observed, such as sleep problems; however, this is the first time he has alleged onset of sleep apnea dating back to service. Because the allegation was made after his former assertions of onset in 2007, and is inconsistent with prior statements, the Board finds his statements are entitled to no probative value. 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). The examiner diagnosed obstructive sleep apnea and opined that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. She noted his struggles with obesity while on active duty, a risk factor for sleep apnea, but said not all overweight individuals have sleep apnea. As an example, she noted that she found no symptoms consistent with sleep apnea or a diagnosis of sleep apnea in the STRs despite his weight issues. She also found no incident during active duty that would cause or lead to the development of an upper airway obstruction and to the eventual diagnosis of obstructive sleep apnea. Further, she noted that the Veteran said he had no sleep problems at retirement, weighing against a finding of direct service connection for sleep apnea. The examiner also addressed secondary service connection for sleep apnea. She noted risk factors for sleep apnea and said that while diabetes causes micro vascular, macro vascular, and other nonvascular complications, clinically, the complications do not cause or aggravate upper airway obstructions leading to the diagnosis of obstructive sleep apnea. Further, she found no medical evidence or evidence in medical literature linking any of the Veteran's service-connected disabilities, to include diabetic neuropathy, diabetic retinopathy, cardiomyopathy, peripheral neuropathy, peripheral vascular disease, erectile dysfunction, hypertension, or intermittent edema of the bilateral pretibial areas to the diagnosis of sleep apnea. She also opined that his service-connected disabilities have not aggravated the upper airway obstruction leading to sleep apnea. Thus, the Board finds that the opinion weighs against a finding of service connection as secondary to any of the Veteran's service-connected disabilities. The Board has considered the Veteran's statements regarding the etiology of his sleep apnea, however, as a lay person, he is not competent to provide a credible opinion as to the etiology of his disability. Simply, as a layperson without medical training, he is not competent to answer the medical questions presented in this case. The Board has also considered the positive opinions from the Veteran's private provider, Dr. J.W. In cases where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa. See 38 U.S.C.A. § 5125 (West 2002); White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001) (declining to adopt the treating physician rule for adjudicating VA benefits). Regardless of the source, an examination report must minimally meet the requirement of being sufficiently complete to be adequate for the purpose of adjudicating the claim. See 38 U.S.C.A. § 5125; 38 C.F.R. § 4.2. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds that the letters from Dr. J.W. are entitled to less probative weight than the opinions provided by the VA examiner. First, the VA examiner had access to and reviewed the Veteran's claims file, including STRs, and based her opinions on the entirety of the evidence. It does not appear that Dr. J.W. has reviewed the entirety of the Veteran's medical history. Further, the while Dr. J.W. claims that the insulin caused or contributed to the Veteran's obesity, the VA examiner's research shows that the insulin generally contributes to an 11 pound weight gain - not the 34 pound weight gain evidenced by the records. She noted his history of weight problems and said he suffered obesity prior to taking insulin and that insulin alone does not contribute to large weight gains. Notably, Dr. J.W. said the obesity caused sleep apnea, however, rationale was not provided. The VA examiner indicated that not all obese persons suffer sleep apnea. In addition, while Dr. J.W. claimed that diabetes has a negative effect of the micro and macro vascular system and the autonomic nervous system and can damage multiple organs, he did not explain how this could cause or aggravate sleep apnea. Regardless, the VA examiner indicated that the complications do not cause or aggravate upper airway obstructions leading to the diagnosis of obstructive sleep apnea. Her opinion was based on medical expertise and her findings in medical literature. Thus, based on the research and rationale provided by the VA examiner, the Board finds that her opinions are entitled to greater probative value than those of Dr. J.W. In summary, the Board finds that service connection is not warranted on a direct basis as the competent and credible evidence does not show sleep apnea during service, that it had onset within one year of separation from service, or that he suffered continuity of symptomatology during and subsequent to service. Further, the competent and credible evidence does not support a finding that the service-connected diabetes, or any other service connected condition, to include diabetic neuropathy, diabetic retinopathy, cardiomyopathy, peripheral neuropathy, peripheral vascular disease, erectile dysfunction, hypertension, or intermittent edema of the bilateral pretibial areas, caused or aggravated his sleep apnea. As the preponderance of the evidence is against the claim, service connection for sleep apnea must be denied. The benefit of the doubt rule does not apply. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in January 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and private treatment records. The Veteran submitted statements and was afforded VA medical examinations in May 2008 and March 2012, which have bene deemed adequate for rating purposes. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for sleep apnea, to include as secondary to diabetes mellitus type II, is denied. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs