Citation Nr: 1301997 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 08-29 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to April 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). This case has since been transferred to the Oakland, California RO. The Veteran testified at a Travel Board hearing before a Veterans Law Judge in December 2010. A transcript of that hearing has been associated with the claims file. This issue listed on the title page was previously remanded by the Board in February 2011 for additional development. In February 2011, the Board also denied the Veteran's claims for service connection for hearing loss and tinnitus, and as this decision was final when issued and there is no indication that the Veteran has appealed the Board's decision, these issues are no longer in appellate consideration. The Board also granted the claim for service connection for a lumbar spine disability, thereby constituting a full grant of the benefits sought on appeal. By a June 2011 rating decision the RO effectuated the Board's grant of service connection for a lumbar spine disability. This claim was previously remanded by the Board in May 2012 for additional development. FINDING OF FACT The satisfactory and probative evidence of record reflects that the Veteran's currently diagnosed sleep apnea did not originate in service or for many years thereafter and is not related to any incident during active service. CONCLUSION OF LAW The criteria for the establishment of service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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 that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided notice of the VCAA in October 2006. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received notice in October 2006 and September 2008, pertaining to the downstream disability rating and effective date elements of his claim and was furnished a statement of the case in September 2008 with subsequent readjudication in May 2009, March 2012 and October 2012 supplemental statements of the case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, private medical records, VA outpatient treatment reports, an adequate VA examination and opinions and statements and testimony from the Veteran, his spouse and his representative. The Board notes that the June 2011 VA examination report reflects that the examiner reviewed the Veteran's past medical history, documented his current medical condition, rendered appropriate diagnoses and rendered addendum opinions in August 2011 and May 2012 consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board concludes that the medical examination and opinions are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This case was previously remanded by the Board in May 2012 to provide the Veteran with an adequate VA opinion. As the VA examiner complied with the Board's remand instructions, the Board is satisfied that the development requested by its May 2012 remand has now been satisfactorily completed and substantially complied with respect to this issue. See Stegall, 11 Vet. App. 268 (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). The veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury preexisted service. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In Crowe v. Brown, 7 Vet. App. 238 (1994), the U.S. Court of Appeals for Veterans Claims (Court) noted that the presumption of soundness attaches only where there has been an induction medical examination and where a disability for which service connection is sought was not detected at the time of such examination. It was further noted that the regulation terminology denotes only such conditions as are recorded in examination reports and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). The burden is on the government to rebut the presumption of soundness and the presumption of aggravation by clear and unmistakable evidence that a condition was both preexisting and not aggravated by service. Compare 38 C.F.R. § 3.304(b), with Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. § 1111 to the extent that it states that the presumption of soundness may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). See also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v, West, 13 Vet. App. 31, 35 (1999). Analysis In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that his sleep apnea began during his active service and has continued since that time. Specifically, in his July 2007 notice of disagreement (NOD), he alleged that his sleep apnea was secondary to his deviated septum which was incurred during his active service when his nose was broken while he had been breaking up a fight at a service-related picnic. The Veteran's DD form 214 reflects that his military occupational specialty (MOS) was that of an Air Policeman. Therefore his reports of having broken up fights during his active service are consistent with his MOS. See 38 U.S.C.A. § 1154(a) (West 2002). Service treatment reports reflect that, upon entrance into active service, a July 1962 entrance examination revealed no abnormalities of the lungs and chest; an abnormality of the nose, specified as a nasal septal deviation, was noted. At this time, the Veteran was found to be qualified for active service and a follow up evaluation in August 1962 revealed no additional defects were discovered upon physical examination. A July 1962 Report of Medical History revealed that the Veteran reported having a history of ear, nose and throat trouble, although no additional information was recorded. Upon separation from active service, an April 1966 Report of Medical History revealed that the Veteran again reported having a history of ear, nose and throat trouble, which was specified as occasional tonsillitis, treated with penicillin with no complications and no sequelae. In addition, the Veteran specified that he was in good physical condition with no ailments and he denied all other significant medical or surgical history except for childhood mumps, occasional tonsillitis, an appendectomy at age 11, and a fractured left ankle in 1959. An April 1966 separation evaluation revealed no abnormalities of the lungs and chest or the nose upon clinical evaluation and the notes and significant medical history reflect that Veteran denied all other significant medical or surgical history except for childhood mumps, occasional tonsillitis, an appendectomy at age 11, and a fractured left ankle in 1959. Private and VA treatment reports from April 2000 to May 2009 reflect that the earliest evidence of record in which the Veteran was noted to have a history of obstructive sleep apnea was demonstrated by a March 2003 private treatment report. The Veteran was then diagnosed with probable obstructive sleep apnea in a separate March 2003 private treatment report and referred for a sleep study. Following an April 2003 private sleep study, he was diagnosed with obstructive sleep apnea. Subsequent private and VA medical records reflect that the Veteran was treated for and diagnosed with obstructive sleep apnea, characterized as severe. In a September 2007 statement, the Veteran's spouse reported that prior to joining the Air Force, her husband had no sinus related problems and that, after breaking up a fight during active duty, he had broken his nose. She also reported that he was never provided with proper treatment, although he sought it repeatedly. Finally, she stated that his upper respiratory problems had continued to get worse over the years and had originated from the in-service injury. In a December 2010 Travel Board hearing, the Veteran testified that he originally had broken his nose during his active service in 1963, around either September or October of that year. He reported that a service member had punched him in the nose. The Veteran's spouse testified that he did not have a problem with sleeping or breathing prior to that incident and since that time of the incident, he had problems breathing and sleeping. The Veteran also testified that he had gotten his deviated septum corrected at the VA. In a June 2011 VA examination, the Veteran reported that he had to deal with bar fights and domestic violence while in active service, at which time his nose had been broken and had to be reset three different times during this period. He reported that his spouse had stated that he would have episodes in which he would stop breathing and learned to shake him and turn him to the side at night, but he slept through the night. He reported no other evaluation or treatment for sleeping difficulties or respiratory problems. The Veteran reported that in 2001, he had a sleep study and was placed on a continuous positive airway pressure (CPAP) machine. He stated that, since that time, he had been able to sleep through the night without waking to urinate or waking with headaches and he had been using a CPAP for the last 10 years with yearly adjustments. The Veteran reported that in 2006 he was referred for a nasal septum surgery to open up the left nasal passage and the nasal surgery made no difference in his night time breathing, sleep or use of the CPAP but did make it easier for him to breathe through the left nostril during the day. He also reported no change in evaluation or treatment for his nose after his 2007 surgery, however the examiner noted records showed changes in medication for his obstructive sleep apnea. The Veteran was diagnosed with obstructive sleep apnea. The examiner noted the Veteran was on a CPAP for 10 years, he had been able to sleep straight without getting out of bed to urinate or for headaches since he went on a CPAP and he was satisfied with this improvement. The examiner also diagnosed the Veteran with a history of troublesome snoring predating military service, which was first noted by his wife before basic training. In an August 2011 addendum to the VA examination, the VA examiner reviewed the claims file, including the service treatment reports, and provided opinions with respect to the Veteran's sleep apnea. He opined that he could not find evidence that the Veteran developed sleep apnea or significantly increased risk factors for sleep apnea during his military service after reviewing the available records. He found therefore, that it was less likely than not that the Veteran acquired additional obstruction causing his current sleep apnea during or as a result of his military service. He also opined that the Veteran's current obstructive sleep apnea was more likely than not related to the Veteran's airway anatomy, including his snoring and nasal septal deviation, which the examiner found had predated his military service. The examiner found that the Veteran's obesity, which developed over the years after military service, was also more likely than not, a major contributor to his current sleep apnea problem. Finally, the examiner concluded that, after reviewing the military records and claims file, he was unable to identify a cause for aggravation of obstructive sleep apnea as a result of his military service without speculation and therefore found it was less likely than not that the Veteran's military service resulted in significant aggravation of his current sleep apnea syndrome beyond the normal progression of the disease, utilizing the currently available information. In a May 2012 addendum to the VA examination, the VA examiner reviewed the claims file, including the service treatment reports and the Veteran's lay statements and his MOS in service, and provided opinions with respect to the Veteran's sleep apnea. He found that the Veteran's statements and medical evaluation in July 1962 and April 1966 denied difficulty sleeping, made no mention of snoring and there was no mention of a new nasal or other airway problems during military service after the notation of septal deviation on the enlistment examination. The examiner also noted that he could not find evidence that the Veteran developed sleep apnea or a significantly increased risk for sleep apnea during his military service after reviewing currently available records. He therefore noted it would be speculation for him to attribute the onset or cause of the Veteran's current sleep apnea during or as the result of military service. The examiner noted that sleep apnea was diagnosed 10 years ago, and over 40 years after he left the military. Therefore, he concluded that, utilizing the currently available records and context of the Veteran's current physical condition, it was less likely than not that the Veteran acquired an additional obstruction causing his current sleep apnea syndrome during military service, or as a result of military service. The examiner again noted that the Veteran's sleep apnea was diagnosed 10 years ago and over 40 years after he left the military and that it would be speculation to attribute his onset of diagnosable obstructive sleep apnea 10 years ago to any one factor 40 years before his diagnosis. He found that the Veteran's current obstructive sleep apnea was more likely than not related to his airway anatomy, including snoring and nasal septal deviation which predated his military service and increased obstruction caused by his obesity which developed after military service. The examiner then explained that obesity is a significant risk factor for the onset of obstructive sleep apnea. He noted that he did not find records indicating that he had increased septal deviation or upper airway obstruction during or as a result of military service. Finally, the examiner found that, after reviewing the military records and the claims file, he was unable to identify a cause for aggravation of his obstructive sleep apnea as a result of his military service without speculation and therefore, it was less likely than not that the Veteran's military service resulted in a significant aggravation of his current sleep apnea syndrome beyond the normal progression, utilizing the currently available information After a review of the record, the Board concludes that entitlement to service connection for sleep apnea is not warranted. In this regard, the Board finds that while the Veteran is currently diagnosed with sleep apnea, the satisfactory lay and medical evidence of record does not demonstrate a nexus between the Veteran's currently diagnosed sleep apnea and his active service. As noted, a discussion of the presumption of soundness is necessary in this case as the record reflects that the Veteran was shown to have a deviated nasal septum on entrance albeit sleep apnea was not shown. As noted the Veteran contends that he sustained a broken nose in service which caused or contributed to his sleep apnea. He and his spouse have also asserted that the Veteran had observable symptoms of sleep apnea in service after his nose was broken the second time in service. As noted, the presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. In this case, the Board finds that, as there were no findings of sleep apnea noted at the time of the Veteran's examination, acceptance and enrollment into active service, the presumption of soundness applies to this claim as to that disorder. Id. The Board also finds, however, that an abnormality of the nose, specified as a nasal septal deviation, was noted in a July 1962 entrance examination and no additional defects were discovered upon physical inspection in August 1962. As such, the presumption of soundness does not attach with respect to the Veteran's nasal septal deviation only. Id. However, with respect to this disability, the Board must also discuss the presumption of aggravation as there is a suggestion in the record that aggravation of the preexisting deviated nasal septum could have led to onset of the Veteran's sleep apnea in service. The Board observes that the medical evidence of record demonstrates that the Veteran is currently diagnosed with sleep apnea. Service treatment reports are absent of any findings or complaints related to sleep apnea during the Veteran's active service. As noted above, the Veteran's MOS of an Air Policeman is consistent with his reports of having broken up fights during his active service. See 38 U.S.C.A. § 1154(a) (West 2002). The Board finds that while the presumption of soundness on entrance does not attach with respect to the Veteran's nasal septal deviation, the probative evidence of record does not demonstrate that such was aggravated in service resulting in the Veteran's sleep apnea during active service nor does the most probative evidence of record indicate that the onset of sleep apnea was in service to the extent that the Veteran's sleep apnea may not be attributed to any preexisting nasal disorder. In this regard the Board notes that the VA examiner's opinion in May 2012 reflects that he found the Veteran's current obstructive sleep apnea was more likely than not related to his airway anatomy, including snoring and nasal septal deviation which predated his military service as well as increased obstruction caused by his obesity which developed after military service. In addition, the VA examiner did not find sufficient evidence indicating that the Veteran had an increased septal deviation nor upper airway obstruction during or as a result of military service despite the competent assertions of the Veteran and his spouse that the Veteran's nose was broken two times during service. The post-service medical evidence of record demonstrates that there is no competent and credible evidence of treatment for sleep apnea in the medical record until March 2003, approximately 37 years after the Veteran's separation from active service. The Board acknowledges the lay statements and testimony provided by the Veteran and his spouse that that his deviated septum was incurred during his active service after his nose was broken while he had been breaking up a fight, that he did not have a problem with sleeping or breathing prior to the fight in service in 1963 and since that time of the incident, he has had problems breathing and sleeping, and these statements are competent evidence of a continuity of symptoms since that time. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (a lay person is not competent to render an opinion regarding the diagnosis or etiology of a disease or injury; however, a lay witness can provide and "eye-witness" account of the visible symptoms). The Board finds however, that the statements and testimony provided by the Veteran and his spouse regarding a continuity of symptoms since active service and treatment while competent are not credible evidence as they are internally inconsistent and inconsistent with the contemporaneous service records. In this regard, the Board notes that, while the Veteran reported in his July 2007 NOD that his deviated septum was incurred during his active service when his nose was broken while he had been breaking up a fight at a picnic of Special Forces personnel, the evidence of record demonstrates that a deviated septum was noted upon the Veteran's entrance into active service in July 1962 and not after his entrance into active service. The service records also are absent of any treatment for a broken nose during the Veteran's active service. In addition, the April 1966 separation examination reflects no abnormalities of nose, lungs or chest upon clinical evaluation and the notes and significant medical history reflect that the Veteran had specifically denied all other significant medical or surgical history except for childhood mumps, occasional tonsillitis, an appendectomy at age 11, and a fractured left ankle in 1959. Moreover, in the April 1966 report of medical history, while a history of ear, nose or throat trouble was noted with no additional explanation, the Veteran specified that he was in good physical condition with no ailments and it was again noted that he denied all other significant medical or surgical history except for childhood mumps, occasional tonsillitis, an appendectomy at age 11, and a fractured left ankle in 1959. The Board also observes that the record reflects that the earliest objective indication of sleep apnea in the record was not until March 2003, approximately 37 years after the Veteran's separation from active service. See Cromer v. Nicholson, 19 Vet. App. 215 (2005); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) ("in a merits context the lack of evidence of treatment may bear on the credibility of the evidence of continuity"). Accordingly, the lack of contemporaneous evidence, the inconsistency of the Veteran's current statements and the ones made during his in-service evaluations and the inconsistency between the contemporaneous service records and the reports by the Veteran and his spouse diminishes the reliability of these statements and they are afforded little probative value. Further, the Veteran and spouse are competent to report that the Veteran did sustain a broken nose in service, and the Board acknowledges the Veteran's contention that sleep apnea was caused by this incident. However, such a relationship is not amenable to lay observation and thus is a determination that is too medically complex to be made by someone without an appropriate medical background. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Accordingly, the Veteran's contention, in itself, does not constitute competent evidence in support of his claim, and is outweighed by the findings of the VA examiner discussed above, who is a medical professional. Finally, the Board observes that the VA examiner opined in his May 2012 addendum opinion that, that it was less likely than not that the Veteran acquired an additional obstruction causing his current sleep apnea syndrome during military service, or as a result of military service. In so finding, he noted that the Veteran's statements and medical evaluation in July 1962 and April 1966 denied difficulty sleeping and made no mention of snoring and there was no mention of a new nasal or other airway problems during military service after the mention of septal deviation on the enlistment examination. The examiner also noted that he could not find evidence that the Veteran developed sleep apnea or a significantly increased risk for sleep apnea during his military service after reviewing currently available records noting that sleep apnea was diagnosed 10 years earlier, and over 40 years after he left the military. As noted above, this opinion has been found to be adequate and therefore does not support a nexus between the Veteran's active service and his currently diagnosed sleep apnea. Therefore, the competent, credible, and most probative evidence of record does not show an increase in disability of the preexisting deviated nasal septum manifested by sleep apnea in service nor does it show the onset of sleep apnea in service. Accordingly, the evidence does not demonstrate any nexus between the Veteran's currently diagnosed sleep apnea and his active service on the basis of service incurrence or on the basis of aggravation of a preexisting disorder. Thus, service connection for sleep apnea is not warranted. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for sleep apnea is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs