Citation Nr: 1301858 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-05 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertensive heart disease. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to June 1979. It is noted that a May 2000 DD Form 215 indicated that separation date on DD Form 214 was corrected to May 14, 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which, in pertinent part, denied service connection for sleep apnea with continuous positive airway pressure (CPAP) machine. In February 2012, the Board remanded the Veteran's claim of service connection for sleep apnea, to include as secondary to service connected hypertensive heart disease, for additional development, which has been completed. In a statement from the Veteran received in November 2012, he question want happened regarding an agent orange claim. This matter is referred to the RO for the appropriate action. FINDINGS OF FACT 1. Sleep apnea or chronic symptoms thereof were not manifest during service. 2. Symptoms of sleep apnea have not been continuous since service separation. 3. The current sleep apnea is unrelated to service and is not caused or aggravated by any of the Veteran's service connected disabilities, including hypertensive heart disease. CONCLUSION OF LAW Sleep apnea was not incurred in, or aggravated by, active service and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely pre-adjudication July 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate his claim for service connection as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance the VA could provide the Veteran in obtaining this evidence. The notice included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain any identified relevant records and evidence. The Veteran's service treatment records (STRs) and VA and private medical treatment records were obtained. He has not reported that he is in receipt of, or has applied for, disability benefits from the Social Security Administration (SSA). The Veteran was provided with a VA examination and addendum opinion to determine the nature and etiology of his claimed sleep apnea in October 2008 and March 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the opinion and findings obtained in this case are adequate, as the opinion is predicated on a full reading of the private and VA medical records in the Veteran's claims file. The examiner specifically noted a review of the Veteran's claims file. The nexus opinion provided considered all of the pertinent evidence of record, to include STRs and the statements of the Veteran, was based on an accurate factual basis, and provided a rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board is satisfied that VA has fulfilled the duties to notify and assist required by the VCAA, and appellate review may proceed without prejudicing the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. In order for service connection to be granted on a secondary basis, three elements must be present: a current disability, a service-connected disability, and a competent nexus. 38 C.F.R. § 3.310(a) (2012). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall 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 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment sets forth language requiring 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. The Veteran's current claim of service connection was received by VA in July 2008; thus, the current version of 38 C.F.R. § 3.310 is applicable to his claim. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 469. Additionally, lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran, as a lay person, is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) citing Jandreau). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Analysis Service connection is currently in effect for hypertensive heart disease, posttraumatic stress disorder, prostate cancer, gout, tinnitus, residuals of a fracture of the right fifth metacarpal, residuals of a right ankle injury, hearing loss, pseudofolliculitis barbae, and impotence. STRs reflect no complaints of, treatment for, or a diagnosis related to, sleep apnea or any symptoms reasonably attributed thereto. At the time of discharge, the May 1979 clinical evaluation of the Veteran's head, face, neck, nose, sinuses, mouth, and throat were normal, and he was found to be neurologically and psychiatrically normal; no diagnosis of sleep apnea or sleeping problems of any sort were noted by the examiner. In his May 1979 Report of Medical History the Veteran denied then having, or ever having had, frequent trouble sleeping or throat trouble. Therefore, no chronic sleep apnea or chronic symptoms thereof were noted in service. Next, post-service evidence does not reflect sleep apnea symptomatology for many years after service discharge. Clinical evaluation in March 1982 during the Veteran's Army Reserves examination revealed that his head, face, neck, nose, sinuses, mouth, and throat were normal, and he was found to be neurologically and psychiatrically normal; no diagnosis of sleep apnea or sleeping problems of any sort were noted by the examiner. A November 2002 private sleep study report noted that the Veteran had a history of snoring and shortness of breath and was given an impression of abnormal sleep study with evidence of obstructive sleep apnea (OSA). It was noted that the Veteran was started on CPAP. This is the first recorded symptomatology related to sleep apnea, coming more than 20 years after discharge. Therefore, the medical evidence does not reflect continuity of symptomatology. The Veteran has not clearly claimed that he has experienced symptoms of sleep apnea continually since service. Rather, in his July 2008 service connection claim he asserted that his sleep apnea is secondary to his heart disease. However, on his July 2009, Notice of Disagreement, which is handwritten and somewhat illegible, he appears to assert that his sleep apnea has been going on for a long time and rhetorically asked why he did not apply for sleep apnea in 1979. Given the Veteran's unclear statements and fact that he was granted service connection for hypertensive heart disease in an October 1981 rating decision, effective June 15, 1979, the Board will interpret his statements as an assertion that his current sleep apnea, or symptoms thereof, have been continuous since service. The Veteran is competent to report symptoms, such as being tired, snoring, or waking up during the night with an inability to breath or chocking, that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. See Layno, supra. However, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of sleep apnea after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continuous symptoms of sleep apnea since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination in May 1979, he denied any history or complaints of trouble sleeping. Similarly, during a March 1982 Report of Medical History for the Army Reserves the Veteran denied then having, or ever having had, frequent trouble sleeping or throat trouble and stated that his health was "good." His in-service history of symptoms at the time of service separation examination in May 1979 and during his March 1982 Army Reserves examination are more contemporaneous to service, so they are of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). Additionally, the post-service medical evidence does not reflect complaints or treatment related sleep apnea for more than 20 years following active service. There is a multi-year gap between discharge from active duty service (1979) and initial reported symptoms related to sleep apnea in approximately 2002 (an approximate 23-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board notes that the absence of medical treatment is not the sole basis for finding the Veteran not credible in his assertions of a continuity of sleep apnea symptoms since active service, but is considered one factor along with other evidence discussed above in finding him not credible in his assertions. The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous statements made during his service separation examination, during his Army Reserves examination, and absence of complaints or treatment for years after service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's sleep apnea to service or a service connected disability, despite his contentions to the contrary. To that end, the Board places significant probative value on an October 2008 VA examination and March 2012 addendum opinion undertaken specifically to address the issue on appeal. The October 2008 examiner noted a review of the Veteran's claim file. The examiner noted that sleep apnea was diagnosed in 2002, and that the Veteran was prescribed CPAP, which he reported he continued to use. He reported that he does not have hypersomnolence during the day and feels better on CPAP, but sleeps alone does not know if he snores or wakes up during the night. After a physical examination and a review of medical records, including a December 2002 private sleep study report, the examiner diagnosed the Veteran with OSA. The examiner found that there was no evidence to his knowledge, or based on a review of the current literature regarding sleep apnea, that hypertension is causally related to the development of OSA-hypopnea. There is evidence that hypertension develops due to sleep apnea-not the other way around. The examiner noted that he referenced a medical journal article regarding sleep apnea. The October 2008 VA examiner provided an addendum opinion in March 2012 regarding the etiology of the Veteran's sleep apnea. The examiner reported a review of the Veteran's claim file and his prior examination. The examiner noted that the Veteran was diagnosed with hypertension in 1973, and was diagnosed with OSA in 2002. It was noted that OSA may be the most common cause of reversible hypertension in the world; the examiner cited a medical source for this finding. It was also noted that OSA is caused by repetitive collapse of the upper airway during sleep; the examiner also cited a medical source for this finding. The examiner noted medical literature shows that the risk factors for OSA include obesity, nasal obstruction, and tonsillar hypertrophy, and that these risk factors have to do with mechanical obstruction. Hypertensive heart disease is not among the risk factors; nor in any reports regarding causality/aggravation of OSA. The examiner opined that it is less likely than not that the Veteran's current sleep apnea is due to, or aggravated by, his service connected disabilities, including hypertensive heart disease. The examiner noted that is hypertensive heart disease is left ventricular hypertrophy (LVH). OSA is due to a mechanical collapsing of the airway. The hypertrophy in the LVH does not cause this mechanical airway collapse; nor does it aggravate it. The two are unrelated pathophysiologic processes. The examiner opined that there is no evidence to support the claim that hypertensive heart disease is in any way causing or aggravating his sleep apnea and that he found no evidence that the other service connected disabilities are in any way causing or aggravating his sleep apnea. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, conducted a physical examination, and provided a cogent rationale for his medical opinion. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Board has also considered the Veteran's statements asserting a nexus between his currently-diagnosed sleep apnea and his service connected hypertensive heart disability. The Board notes his statement in his February 2010 VA Form 9 that his doctor gives him sleep medication and that he has a leaking valve in his heart, and other statements of record, which assert that there is some sort of relationship between his service connected hypertensive heart disease and sleep apnea. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, his statements as to a continuity of symptoms of his sleep apnea have been found to lack credibility. As a lay person without any medical training he is not competent to provide evidence on complex questions of medical etiology, such as whether his OSA is caused or aggravated by his service connected hypertensive heart disability or any other service connected disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); Davidson, 581 F.3d at 1316; Layno, supra. Additionally, the Veteran has not asserted that service connected disabilities other than hypertensive heart disease cause or aggravate his sleep apnea. Thus, his opinion regarding the etiology of his sleep apnea is greatly outweighed by the opinions of the October 2008 and March 2012 VA examiner. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for a sleep apnea, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for sleep apnea, to include as secondary to a service-connected disability, is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs