Citation Nr: 1303228 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-36 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service with the United States Army from July 1960 to June 1985. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board has not only reviewed the Veteran's physical claims file, but also records maintained electronically in the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's sleep apnea either began during or was otherwise caused by his military service. CONCLUSION OF LAW Criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is seeking service connection for sleep apnea. Service treatment records were reviewed, but there is no indication that the Veteran ever complained of or sought treatment for any symptoms of sleep apnea. Additionally, sleep apnea was not diagnosed while the Veteran was in service. The Veteran separated from service in June 1985. Less than a year later, he filed his first claim for service connection for high blood pressure and rectal bleeding, suggesting that he had familiarity with the VA disability system, yet he did not mention sleep problems or sleep apnea. While not dispositive in and of itself, this suggests that sleep apnea was not present at that time. A VA examination was provided in conjunction with that claim, but again there was no mention of sleep apnea, or symptoms which might be diagnosed as sleep apnea. Numerous post-service VA treatment records were reviewed, but they too failed to show any sleep complaints for a number of years following service. At a VA psychiatric examination in May 2006, the Veteran reported sleep disturbance, but the complaint was related to his depression and not to sleep apnea. The first post-service evidence of sleep apnea is not of record until March 2008 when the Veteran was first diagnosed with sleep apnea after undergoing a sleep consult at VA. He reported having been a heavy snorer all his life, and stated that he had experienced trouble sleeping at night for at least 30 years. The Veteran's wife indicated that he had stopped breathing at night for the past 30 years, and she stated that he had complained of feeling tired during the day for at least 15 years. He reported that for years he thought that the snoring and stopping breathing was just a natural phenomenon. He indicated that eventually he began to feel so run down during the day that he wound up voluntarily quitting his job in December 2007 because he was no longer able to maintain his work. Following a sleep study, the Veteran was diagnosed with sleep apnea and prescribed a C-PAP. In April 2008, the Veteran filed for service connection for sleep apnea, but he did not state how or why he felt it was related to his time in military service. Similarly in the Veteran's notice of disagreement in December 2008, he simply asserted that he wanted service connection for sleep apnea, failing to give any suggestion of how it was related to his military service. In a second document received in December 2008, the Veteran suggested that his sleep apnea was secondary to his posttraumatic stress disorder (PTSD), but he again did not provide any mechanism for the relationship, nor did he suggest that any medical professional had ever endorsed such a theory. More importantly, the Veteran has not actually been service connected for PTSD, and in fact service connection for PTSD was denied in a final and unappealed July 2009 rating decision. As an initial point, the Veteran and his wife lack the medical training and expertise to provide a complex medical opinion such as diagnosing sleep apnea. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, neither of their opinions on its own would be considered competent to either diagnose sleep apnea or to relate a current diagnosis to his military service. Similarly, no medical opinion of record has been offered even suggesting that the Veteran's sleep apnea is the result of his military service. Nevertheless, service connection may also be established by continuity of symptomatology. That is by showing that a disability or disease began in service and continued to the present time. To this end, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent 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). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the only evidence that the Veteran's currently diagnosed sleep apnea even might be related to his military service are the assertions by the Veteran and his wife at the March 2008 sleep study that he had been snoring and stopping breathing for "30 years" and that he had experienced trouble sleeping for "30 years." While they are both considered competent to make such statements, the Board finds that in light of the totality of the evidence, these isolated statements are insufficient to actually establish that the Veteran's currently diagnosed sleep apnea began during his time in military service. The fact remains that the use of "30 years", a round and generic number, to describe when the Veteran first began regularly stopping breathing during his sleep or when he first had trouble sleeping, suggests that neither the Veteran nor his wife actually remembered when they first observed such symptoms, other than it occurred a number of years earlier. Thus, taken at its face, such statements do not establish that the Veteran's symptoms began in 1978, as they would if read literally. Rather, these statements are taken to mean that the symptoms began a number of years earlier. However, at the time of testing in March 2008, the Veteran had been out of the military for approximately 23 years, a lengthy period of time in and of itself. As such, the mere conclusion that the Veteran had experienced symptoms for a long time is not found sufficient to establish service connection. Additionally, the wife's statement did not suggest that she remembered observing the Veteran's symptoms while he was still in the military, and she gave no indication as to how she arrived at 30 years, such as by referencing a specific event around that time, or even by providing a specific year. Indeed, with the exception of the isolated comments at the Veteran's sleep study, neither the Veteran nor his wife have provided any additional details as to the onset of the Veteran's symptoms. The Board does not suggest that the Veteran or his wife should remember a specific date of onset, nor is the Board suggesting any memory lapse or attempt to mislead. However, the fact remains that the Veteran and his wife are attempting to remember a time that transpired decades ago. Moreover, at the same March 2008 appointment, the Veteran stated that he had been tired during the day for only 15 years. This creates a natural discrepancy, in that the Veteran is essentially reporting that the effects of the sleep apnea began 15 years after his wife is alleging that the condition first began. As noted, service treatment records are silent for any diagnosis of sleep apnea. This fact alone is not surprising. However, if the wife's allegation that the Veteran was stopping breathing in his sleep from the late 1970s, it seems hard to believe that the Veteran would not seek any medical attention for such symptoms either during service or in the years following service. This is particularly relevant in that the Veteran did seek considerable medical treatment in the years between service and 2008; yet, as the Veteran himself acknowledges, he did not seek any treatment for sleeping problems for many years after service. Moreover, even when he did initially seek treatment for sleeping problems prior to 2008, such were found to be symptoms of his service connected mood disorder, and not representative of a separate disability, such as sleep apnea. As described, the Veteran's claims file is void of any evidence for more than 20 years after service showing any symptoms of sleep apnea; and the first indication of any problems with sleep apnea did not appear until approximately March 2008. The only evidence of record which actually places the onset of symptomatology which might have been compatible with a diagnosis of sleep apnea was the statements by the Veteran and his wife at a sleep study in 2008. However, their statements as a whole, for the reasons addressed above, are considered too generic to actually place the onset of the Veteran's sleep apnea during his period of honorable military service. Given this conclusion, the criteria for service connection have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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 the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in September 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records and service treatment records have been obtained, and the Veteran has not alleged receiving any private treatment for his sleep apnea. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. While a VA medical opinion was not provided in this case, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). The record in this case is negative for any indication, other than the Veteran and his wife's assertions, that his sleep apnea is in any way related to either his military service or to a service connected disability. As such, these conclusory lay assertions are insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for sleep apnea is denied. ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs