Citation Nr: 1303396 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-07 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1972, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO), which denied, in pertinent part, service connection for obstructive sleep apnea. In his March 2009 substantive appeal, the Veteran requested a personal hearing before the Board. In a July 2010 correspondence to the RO, the Veteran stated that he no longer wished to have a personal hearing with the Board. Accordingly, the hearing request is considered to have been withdrawn. This matter was previously remanded by the Board in October 2010, January 2012, and April 2012 for further development. Additionally, the Board notes that is has reviewed not only the evidence contained in the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDING OF FACT The Veteran's obstructive sleep apnea did not have onset in service and was not caused or aggravated by the Veteran's active military service, to include his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, including as secondary to service-connected PTSD, have not been met. 38 U.S.C.A. §§ 1110,5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic disorder during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005). In a claim for secondary service connection, the regulations provide that service connection shall be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran contends that his obstructive sleep apnea began during his active service, or was caused or aggravated by his service-connected PTSD. At the outset, the Board notes that the Veteran's service treatment records are silent for any complaints of or treatment for sleep apnea. On January 1972 separation examination, the Veteran denied having any trouble sleeping, providing some limited evidence against this claim. At an October 2009 hearing before a Decision Review Officer (DRO), the Veteran testified that his sleep problems began while serving in the Republic of Vietnam. He reported that he would average 4 hours of sleep per night and was always tired, but that he attributed the sleep trouble at that time to his daily activity. He reported that he did not seek treatment for his sleep problems while on active service, and that he did not start to receive treatment for many years following separation from active service. VA treatment records show that in May 2007 the Veteran was seen for a sleep medicine consultation. At that time he complained of excessive daytime sleepiness, non-restorative sleep, waking with pain in his hip, witnessed apnea, heroic snoring, and long pauses in snoring. Physical examination indicated sleep disordered breathing and the Veteran was scheduled for a sleep study. After completion of the sleep study the Veteran was given a diagnosis of severe obstructive sleep apnea and oxyhemoglobin desaturation. The Veteran was given a continuous positive air pressure machine (CPAP) and provided instructions on its use. On December 2008 VA examination, the Veteran reported having sleep problems following his service in Vietnam. Conditions that affected his sleep evaluation were noted to be a 25 pound weight gain while on active service and 68 pound weight gain following his separation from active service. [The Board notes that the Veteran's service treatment records indicate his total weight gain while on active service was 30 pounds.] He was noted to have high blood pressure and PTSD. After physical examination and review of the claims file, the examiner opined that the Veteran's obstructive sleep apnea was unlikely to be related to his active service, even though he had PTSD. The examiner stated that it was more likely that his obstructive sleep apnea was related to his 68 pound weight gain following his separation from active service, providing highly probative evidence against this claim. On November 2010 VA examination, the examiner noted the Veteran's May 2007 sleep study and diagnosis of obstructive sleep apnea. The examiner also noted that the Veteran was issued a CPAP machine, and that he had reported waking up refreshed with decreased daytime sleepiness after using the CPAP machine. The examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea was related to his active military service or to his service-connected PTSD. The rationale provided for the opinion was that the Veteran did not begin exhibiting significant symptoms of obstructive sleep apnea until approximately 30 years following separation from active service, and that because sleep apnea was a mechanical obstruction to sleep, it was unrelated to his psychological problem of PTSD. In February 2012 an addendum opinion was provided by an examiner different than the November 2010 VA examiner. The February 2012 opinion provider opined that the Veteran's obstructive sleep apnea was less likely than not related to his active service or PTSD, as sleep apnea was mechanical in nature, i.e. relaxed throat muscles, and because the Veteran was not diagnosed with obstructive sleep apnea until nearly 35 years following separation from active service. A second addendum opinion was obtained in April 2012 by the February 2012 opinion provider to address the issue of whether the Veteran's service-connected PTSD aggravated his obstructive sleep apnea. The opinion provider opined that it was less likely than not that the Veteran's PTSD caused or aggravated his obstructive sleep apnea. The opinion provider explained that the Veteran's sleep apnea is obstructive in nature, which is due to throat mechanical factors. Additionally, he explained that PTSD does not render any obstructive features in the throat, such as enlarged uvula, low soft plate, posteriorly placed tongue, and therefore the Veteran's PTSD was not a cause or aggravating factor of the Veteran's obstructive sleep apnea. Based on the above evidence, the Board finds that entitlement to service connection for obstructive sleep apnea is not warranted. There is no medical evidence of record that relates the Veteran's obstructive sleep apnea to his active service or to his service-connected PTSD. In this regard, three VA examiners have opined that the Veteran's obstructive sleep apnea is unrelated to his active service, to include his service-connected PTSD. Specifically, the April 2012 opinion explained that obstructive sleep apnea is mechanical in nature, and PTSD does not cause any obstructive features in the throat. The Board finds this opinion is entitled to great probative value as it provides a detailed basis for its reasoning, and it is significant that there is no contrary opinion of record. While the Veteran has testified that he suffered from sleep trouble while on active service, his service treatment records are silent for any complaints of sleep trouble. The first postservice medical evidence documenting any such complaints is 35 years following his separation from active service. The Board finds that the medical evidence of record, indicating the Veteran's obstructive sleep apnea is unrelated to his active service, is more probative than the Veteran's lay statements, which are not supported by the contemporaneous evidence of record. His lay statements of a sleep problem that has existed since service are found to be inaccurate, outweighed by the evidence cited above, including the Veteran's own statement on separation that he did not have sleep issues. While the Veteran may believe that his PTSD has caused or aggravated his obstructive sleep apnea, he has not demonstrated that he has any knowledge or training in determining the etiology of such a medical condition. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence; however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer an etiology opinion rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has obstructive sleep apnea due to his military service, to include his service-connected PTSD, is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather, such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. Significantly, the Veteran has not pointed to any competent medical evidence of record showing a relationship between his obstructive sleep apnea and his active military service. In this regard, at his October 2009 DRO hearing, the Veteran expressly denied that he had ever been told his obstructive sleep apnea was related to his active service or his service-connected PTSD. Additionally, the Board notes that in support of his claim, the Veteran has referred to, and submitted a copy of, a prior Board decision in which service connection for sleep apnea, secondary to service-connected PTSD, was granted. 38 C.F.R. § 20.1303 instructs that previously issued Board decisions are not precedent; however, they "can be considered in a case to the extent that that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law." The Board notes that the decision submitted by the Veteran contained medical evidence of a link between the claimed sleep apnea and service-connected PTSD. In this case, there is no medical evidence establishing that the Veteran's obstructive sleep apnea is related to his service-connected PTSD and, in fact, in this case, there is highly significant medical evidence against such a finding. Therefore, the prior Board decision he has submitted has no material bearing on this claim. For all the above reasons, entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letters sent to the Veteran in October 2007, July 2008, and September 2008. These letters informed the Veteran of what evidence is required to substantiate his claim and of his and VA's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. The Board notes that the duty to notify was not completely satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC [Statement of the Case] or SSOC [Supplemental Statement of the Case], is sufficient to cure a timing defect). Although the letter containing the notice regarding the evidence requirements to establish secondary service connection was not sent prior to the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of the notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and was given ample time to respond, but the AOJ also readjudicated the case by way of a statement of the case after the notice was provided. For those reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran was afforded VA examinations in December 2008 and November 2010 and addendum opinions were obtained in February and April 2012. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for sleep apnea, including as secondary to service-connected PTSD, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs