Citation Nr: 1302160 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-08 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active duty for training from June to October 1990, and active military service from February 2003 to June 2004. This matter is before the Board of Veterans' Appeals (Board) following Board Remands in September 2009, March 2011, and September 2011. This matter was originally on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. In December 2008, the Veteran testified at a Travel Board hearing; and in May 2011, the Veteran testified at a videoconference hearing. Transcripts of those hearings are of record. FINDING OF FACT Obstructive sleep apnea is not in any way related to military service or to a service-connected disability. CONCLUSION OF LAW Obstructive sleep apnea was not incurred in or aggravated by active service and is not causally related to service-connected disability. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has met all statutory and regulatory notice and duty to assist provisions. A February 2007 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473. This letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. Moreover, during the December 2008 and May 2011 Board hearings, the undersigned explained the issue on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and her representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was accorded VA examinations in December 2009 and October 2011. 38 C.F.R. § 3.159(c)(4). Both VA examiners addressed the etiology of the Veteran's obstructive sleep apnea in conjunction with a review of the claims file and physical examination of and interview with the Veteran. The December 2009 and October 2011 VA examination reports are thorough; thus these examinations are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The first question that must be addressed, therefore, is whether incurrence of obstructive sleep apnea is factually shown during service. The Board concludes it was not. The Board notes that obstructive sleep apnea is a physical disorder characterized by recurrent interruptions of breathing during sleep due to temporary obstruction of the airway by lax, excessively bulky, or malformed pharyngeal tissues (soft palate, uvula, and sometimes tonsils) with resultant hypoxemia and chronic lethargy. Stedman's Medical Dictionary, 27th Ed., 111-112. The service treatment records are absent complaints, findings or diagnoses of obstructive sleep apnea during service. On her Post-Deployment Health Assessment in April 2004, the Veteran specifically denied still feeling tired after sleeping. Thus, there is no medical evidence that shows that the Veteran suffered from obstructive sleep apnea during service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. Although the appellant reports in-service symptoms as well as continuity of post-service symptoms, the Board finds her allegations to be of limited probative value. In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the Veteran is competent to give evidence about what she experienced; for example, she is competent to report that she engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, such lack of contemporaneous evidence is for consideration in determining credibility. In this regard, the Board notes that the record is devoid of objective evidence of obstructive sleep apnea until August 2006. In fact, as noted above, the Veteran denied still feeling tired after sleeping on her Post-Deployment Health Assessment in April 2004. In addition, the file contains records of VA and private treatment the Veteran received between July 2004 and the filing of her claim for sleep apnea in December 2006. Prior to August 2006, medical records show no pertinent past medical history concerning sleep apnea, no relevant abnormalities upon physical examination, and no complaints from the Veteran concerning sleep apnea. Private medical records indicate that the Veteran presented to labor and delivery with toxemia and in pre-term labor in August 2006. The Veteran was noted to be breathing harshly and her voice sounds were somewhat muffled consistent with oropharynx swelling. The Veteran reported upper air way noise for two weeks and noted that her husband woke her up at night because she was not breathing. The Veteran was then noted to begin having some slight oxygen desaturation while sleeping. On examination, there appeared to be some occlusion of posterior oropharynx without erythema. The Veteran denied having a sore throat. While sleeping, the Veteran was noted to have loud rapid snoring and increased abdominal breathing with occasional apneic episodes. Anesthesia service agreed that posterior occlusion was present. Stage IV airway was noted, and it was determined that the Veteran would be unable to be intubated in the event of an emergency c-section. There was a question as to an etiology although severe weight gain/edema over the prior few days was noted - there was a 14 pound weight gain in one week. A progress note indicates pharyngeal edema with apneic episodes (co-related with fetal deceleration). In addition, it was noted that the Veteran reported that the problem was acute over last several days to a week. The Veteran's baby was delivered on August 21, 2006. Anesthesia service indicated that the Veteran was status post c-section for severe PIH with upper airway edema decreasing subarachnoid block. The Veteran's postpartum course was complicated by her upper airway edema and pharyngeal edema; and pulmonary service felt that the Veteran's upper airway edema and apneic episodes were most likely related to sleep apnea and recommended that she be placed on CPAP in the evenings. Consultation reports note no reported history of breathing problems or known obstructive sleep apnea prior to "this pregnancy." The Veteran did report "recent onset of hypersomnolence." Assessments included, "No history consistent [with obstructive sleep apnea] prior to [one to two] weeks ago" and "... pregnant lady with nocturnal desaturations likely related to her new onset obstructive sleep apnea. ..." The Board notes that the Veteran has submitted two buddy statements indicating personal knowledge of the Veteran's breathing problems at night and snoring. In addition, the Veteran has testified that she had symptoms of sleep apnea during active service and that she still has the same symptoms. In this case, however, the Board finds more probative the August 2006 pulmonary consultation which notes no reported history of breathing problems or known obstructive sleep apnea prior to the Veteran's 2006 pregnancy. Lay statements made during medical treatment may be afforded greater probative value as these records are generated with a view towards ascertaining the Veteran's state of physical fitness and are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; 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). In this case, there is no medical evidence of any symptoms of obstructive sleep apnea until August 2006. In addition, the Board finds that the lay statements provided in support of this claim are not as probative as the clinical evidence which indicates that the onset of obstructive sleep apnea was not until 2006. Further, in 2004 and 2005, the Veteran filed several claims with VA for compensation benefits evidencing her awareness that she could apply for VA benefits for service-related disabilities. At that time she did not file a claim for service connection for obstructive sleep apnea. This is inconsistent with any assertion that her obstructive sleep apnea had existed since service because it is reasonable to conclude that if she believed that she had obstructive sleep apnea in 2004 and 2005 that was related to service, she would have claimed service connection for it at that time. In light of the clear denials from the Veteran of symptomatology in April 2004, the lack of any relevant history reported between the Veteran's discharge from active service in June 2004 and August 2006, and the clinical evidence indicating onset of obstructive sleep apnea in 2006, service connection is not warranted under 38 C.F.R. § 3.303(b). When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury pursuant to 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In Allen v. Brown, 7 Vet. App. 439 (1995), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") held that the term "disability,", as used in 38 U.S.C.A. § 1110, refers to impairment of earning capacity and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, shall be service-connected. Thus, pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran's nonservice-connected disorder is proximately due to or the result of a service-connected disability, such Veteran shall be compensated for the degree of disability, but only that degree over and above the degree of disability existing prior to the aggravation. See also 38 C.F.R. § 3.310(b). In this case, the appellant clearly has obstructive sleep apnea. The remaining question, therefore, is whether there is medical evidence of a relationship between the current sleep apnea disability and military service or between the current sleep apnea disability and a service-connected disability. No medical professional, however, has ever related this condition to the Veteran's military service or to a service-connected disability. The Veteran underwent VA examination in December 2009 at which time she reported that she was diagnosed with obstructive sleep apnea in August 2006 following an admission for complications of pregnancy but that symptoms onset was prior to her pregnancy noting that she was observed to have loud snoring with symptoms of apnea while in Iraq as witnessed by other soldiers. The Veteran reported that she did not have her symptoms evaluated. The Veteran also noted that she got married in 2004 and her husband also noted similar symptoms. After physical examination of the Veteran and review of the claims file, the examiner opined that it was less likely that the Veteran's sleep apnea had origin in the military. The examiner noted that on post deployment in 2004, the Veteran denied any problems with fatigue after sleeping which would be evidence against sleep apnea. The examiner also noted that there was never any treatment for any symptoms of sleep apnea and explained that sleep apnea tends to begin with daytime hypersomnolence which would be described as tiredness and fatigue after awakening. The examiner noted that the Veteran had a gradual weight gain following her exit from service in 2004 of greater than 30 pounds which would cause structural changes around the head and neck predisposing the Veteran to sleep apnea. The examiner also noted that record suggests symptoms more of a recent onset. In April 2010, the examiner who conducted the December 2009 VA examination was asked to discuss additional evidence noted in the claims file, namely two lay statements dated in 2007. After reviewing the statements, the VA examiner stated that his opinion remained the same. The examiner stated that if the Veteran was noted to have such symptomatology and advised to get medical help and evaluation, she chose not to do so. The examiner stated that the clinical evidence was absent any symptoms of obstructive sleep apnea which would contradict the observations by the two individuals who placed statements on the Veteran's behalf. In October 2011, the RO obtained a medical opinion regarding whether the Veteran's obstructive sleep apnea was related to a service-connected disability. The VA examiner noted that depression was not a medically recognized cause of obstructive sleep apnea and that none of the Veteran's other service-connected disabilities including depression, spine strain, headaches, or hypertension caused or aggravated her obstructive sleep apnea and that there was no relationship between the Veteran's obstructive sleep apnea and service-connected disabilities. In November 2011, the VA examiner who rendered the October 2011 opinion noted that he had reviewed the Veteran's claims file and that there was no change in his opinion. Thus, the record is absent evidence of in-service incurrence of obstructive sleep apnea, credible evidence of continuity of symptomatology, and medical evidence of a nexus between obstructive sleep apnea and either the Veteran's active duty service or service-connected disability. Although the Veteran contends that her obstructive sleep apnea is related to her active service, as a layperson, she is not competent to offer opinions on medical causation and, moreover, the Board may not accept unsupported lay speculation with regard to medical issues. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for obstructive sleep apnea is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs