Citation Nr: 1301543 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-35 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for chronic obstructive sleep apnea. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1986 to March 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDING OF FACT Positional obstructive sleep apnea did not originate in or as a result of service. CONCLUSION OF LAW Positional obstructive sleep apnea was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in February 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in July 2008. VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. No outstanding evidence has been identified that has not otherwise been obtained. These records include a 2012 examination (conducted for VA purposes) regarding the etiology of his sleep apnea. This exam is considered adequate because it was based on a thorough review of the Veteran's pertinent medical history, a complete review of the claims folder, and review of all appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). This rule does not mean that any manifestations in service will permit service connection. To show 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 entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Court has specifically indicated that lay evidence may establish the existence of a current disorder capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) (the Federal Circuit found that under 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board must, however, weigh a veteran's reports against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the 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 claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Background The STRs are negative for report of, treatment for, or diagnosis of sleep problems, to include snoring, and no sleep disorder was diagnosed. These records do reflect that the Veteran was seen on numerous occasions for chronic nose bleeds, to include in 1993, 1995, and 2003. Polyps were noted in 2003. In June 2004, it was recommended that the Veteran start exercising. He weighed 234 pounds. At time of separation examination in November 2005, the Veteran denied problems associated with the nose. He also denied any type of breathing problem or having frequent trouble sleeping. However, rather significantly, he did identify at multiple problems that he had experienced in service such as shoulder pain, gingivitis, and hyperlipidemia, occasional stomach pain. The Veteran filed a claim for service connection for several disabilities in December 2005. While a claim for nose bleeds was made, he no reference to a problem with sleep, fatigue, or snoring. He similarly provided no complaints of sleep problems, snoring, tiredness, or fatigue when he was examined by VA in July 2006. That examination also did not identify any abnormalities of the nose, throat, lungs, or neurological system. In July 2007, on referral, the Veteran was seen by H.A.B., MD, for an evaluation of dyspnea. He complained of increased fatigue and tiredness. He had difficulty breathing at night, to include heavy snoring, as well as with heavy exercise. His wife attested to him having breathing trouble at night that was accompanied with heavy snoring. She said the onset of the symptoms had occurred about a year earlier. The Veteran told the examiner that he had gained weight from his baseline of 234 pounds to 258 pounds. Sleep study conducted in October 2007 showed diagnosis of positional obstructive sleep apnea. In a March 2008 statement, the Veteran stated that his sleep study came about after he went to the doctor because his head was hurting and because he was getting nosebleeds and could not sleep. He said that he was having these problems prior to discharge. In a document headed "Nexus Statement From A Physician" dated in September 2008, it was opined by the signee (who did not designate that he/she was a physician) that the Veteran had been seen since June 2007 at which time he was sent for a sleep study because of his long standing complaints of snoring which had been present for years prior and had increased in severity. He had gained weight over the past 11/2 years which could be a contributive cause of his obstructive sleep apnea. It was opined that it was highly probably that the Veteran did have sleep apnea while in the military and by 2007, it had progressed per his history. The document has a stamp mark from "Main Street Physicians" on N. Main St. in Suffolk, Va. In September 2009, the Veteran noted that he was "not correct" in indicating on his retirement examination that he did not have trouble sleeping. He had always snored and just thought that this was normal. Examination was conducted for VA purposes in August 2012 regarding the etiology of the Veteran's sleep apnea. The examiner was asked to consider whether inservice nose bleeds and the post service historical accounts of snoring in service were initial manifestations of the post service diagnosis of obstructive sleep apnea. The examiner reviewed the claims file and opined that the Veteran's positional obstructive sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by any in-service injury, event, or illness. For rationale, the examiner noted that he could find no indication in the Veteran's medical records of any signs and symptoms that suggested that the sleep apnea began while in service. He further pointed out that the disorder was diagnosed more than one year after the Veteran's discharge date. Analysis After a review of the record, the Board concludes that entitlement to service connection for obstructive sleep apnea is not warranted. In this regard, the Board finds that, while the Veteran is currently diagnosed with the condition, the competent and probative evidence of record does not demonstrate a nexus between the sleep apnea and his active service. The Board notes that STRs are absent of any complaints or findings related to obstructive sleep apnea during active service. Snoring, excessive or otherwise, was not mentioned. While the Veteran was seen for nose bleeds during service, he reported no such problems at time of service separation, and he denied sleep problems. The nose bleeds were never reported as being related to apnea. And, as noted above, on one occasion, his nosebleeds were attributed to polyps. As indicated, the record includes a 2012 review of the record which was conducted to address the etiology question at issue. The physician found no relationship between nose bleeds and snoring and the post service diagnosis of obstructive sleep apnea. The Board also notes that when the Veteran was seen in July 2007, it was reported that his symptoms (to include increased fatigue, difficulty breathing at night, and heavy snoring) had started about one year earlier with diagnosis of sleep apnea shortly thereafter. Thus, his symptoms and diagnosis were not shown during service or until more than one year after discharge. Full consideration has been given to the Veteran's more recent contention that his sleep apnea symptoms (snoring and sleep difficulty) started during his active service. To the extent that he was aware of his snoring while he was asleep, which is a bit questionable, and having problems sleeping, he is more than competent to provide such a history. The credibility of his statement of having snoring or sleep problems since service in questionable, however. First, as noted, 20 years of service treatment records are absent any complaints, treatment, or diagnosis of chronic snoring or sleep problems. It is also noteworthy that he made no such complaints when he filed his initial claim for compensation in December 2005 or when he was examined in July 2006. Such weighs against his credibility as it demonstrates that he was clearly aware of the claims process and identified at least eight problems that he felt had been chronic since service. Had he been experiencing sleep problems at that time, to include snoring, one would think he would have reported such. The Board acknowledges the Veteran's argument that he thought his snoring was "normal" and not a problem that warranted reporting. He says he has been having problems with snoring since his active service. That contention is severely compromised, however, by fact that the Veteran's wife reported that the onset of snoring symptoms and sleep problems had occurred in July 2006, which was clearly post-service, even if by four months. The Board ascribes greater value to this contemporaneous statement. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). While there is a 2008 nexus statement of record that supports the Veteran's claim, the Board finds it to be of little probative value. The opinion finds that the Veteran's sleep apnea was indicated during service because he had a history of snoring and because he had gained weight post service. A relationship between the Veteran's post service diagnosis of sleep apnea and those facts is not sustainable. To the extent that the private physician's opinion is based on a history provided to him by the Veteran, the Board underscores the fact that it does not find the Veteran's statements as to experiencing sleep problems (fatigue, snoring, and tiredness) to be credible. The private opinion report is therefore predicated on an incredible medical history and assigned no probative value. Coburn v. Nicholson, 19 Vet. App. 42 (2006) (held that reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran). See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), (citing Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The fact remains that the sleep apnea (nor any related symptoms such as snoring, fatigue, or tiredness) was not shown during service or until approximately 11/2 after service discharge, and a medical examiner who had access to the entire claims file, which allowed him to see the lack of complaints of snoring or the like in service, concluded that current positional obstructive sleep apnea was not related to such service. In this regard, it is noted that it is the Board's responsibility to weigh the credibility and probative value of all of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). It is also the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board has accorded greater evidentiary weight to the examiner in 2012 who reviewed the record, to include the 2008 "nexus statement" and concluded that the Veteran's post service sleep apnea was not incurred during service or related in any way thereto. With respect to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While the Board is sympathetic to the Veteran's claim, and he is certainly competent to describe that which he experienced in service, any contentions by the Veteran that he has sleep apnea that is related to active service is not competent. There is no indication that he possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. Given the medical evidence against the claim, for the Board to conclude that the Veteran has positional obstructive sleep apnea as a result of service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993). For the reasons and bases provided above, the evidence in this case weighs against the claim of service connection for positional obstructive sleep apnea. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002 & Supp. 2011). ORDER Service connection for positional obstructive sleep apnea is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs