Citation Nr: 1306043 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 06-34 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from February 2001 to June 2001 and from February 2003 to July 2004. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In September 2011, the Veteran presented testimony before the undersigned during a videoconference hearing. A transcript is in the file. In December 2011 the Board remanded the case for additional development to include a VA examination. Subsequently, in September 2012 the Board requested a VHA medical opinion. The case is now ready for review by the Board. FINDINGS OF FACT The Veteran's sleep apnea did not manifest during active military service and is not otherwise related to a disease, injury, or event during service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may 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); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in November 2009 (prior to the initial adjudication of the claim) and February 2012 (subsequent to the initial adjudication of the claim) that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. It also explained what type of information and evidence was needed to establish a disability rating and effective date. VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided by the February 2012 letter after the initial adjudication of the claim, this timing deficiency was cured by the issuance of VCAA notice followed by readjudication in a July 2012 supplemental statement of the case (SSOC). Even if the Veteran was not notified with regard to the degree of disability and the effective date, because the Board has concluded that the preponderance of the evidence weighs against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, the duty to notify has been satisfied. See Dingess/Hartman, 19 Vet. App. at 484; 38 C.F.R. § 3.159. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains personnel records, and a January 2001 entrance examination. The Veteran was afforded a VA examination in February 2012. The Board determined that this examination was inadequate and requested a VHA medical opinion which was received in October 2012. The medical development is now considered to be adequate to determine this case. The service treatment records, with the exception of the January 2001 entrance examination, are not associated with the claims folder. The agency of original jurisdiction (AOJ) contacted the National Personnel Records Center (NPRC) in an attempt to locate these records, and was informed that the service treatment records were not available. The Veteran has not identified any instance of medical treatment for sleep apnea during service. The Board recognizes that it has a heightened obligation to assist the Veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit-of-the-doubt rule when records in the possession of the government are presumed to have been lost or destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Board finds that, based on the AOJ's efforts and the responses from the service department and VAMCs, it is reasonably certain that the Veteran's service treatment records are unavailable and that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A (b) (3) ); see also Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); O'Hare, 1 Vet. App. at 367. As noted, the Veteran had a September 2011 videoconference hearing. The Court has held that the provisions of 38 C.F.R. § 3.103(c) (2) (2012) impose two distinct duties on the VLJ in conducting a hearing: The duty to explain fully the issue and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128 -01 (April 18, 2012). The VLJ identified the issue of service connection for sleep apnea, which was on appeal at that time. The Veteran provided testimony as to his history of snoring in service and the nature of his sleep apnea disability. He did not identify any outstanding medical records. The duties imposed by Bryant were thereby met. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the 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). Criteria The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The claimant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Background The Veteran contends that his current sleep apnea began in service and has continued ever since that time. For the following reasons, the Board finds that service connection is not warranted. In a July 2005 VA psychological treatment summary the Veteran was diagnosed with PTSD. The examiner noted that since his return from the Gulf War, "He has experienced classic symptoms of PTSD..... Sleep is poor; he has disturbing nightmares and intrusive daytime memories." (The Board notes the Veterans is service connected 70% for his PTSD) VA psychological treatment records from June through August 2005 report poor sleep as a symptom of PTSD. In April 2009 the Veteran reported to the VA sleep clinic with a complaint of snoring with periods of apnea. He became drowsy when driving but has never fallen asleep. He listened to loud music or opened the window to stay awake. The impression was probable obstructive sleep apnea. The veteran was scheduled for an unattended sleep study at home. In a June 2009 VA mental health clinic report the Veteran noted getting only 4 hours of sleep a night. He reported difficulty falling asleep and easily awakening. He reported snoring and occasional nightmares. His wife told him that he stops breathing and gasps for air. The Veteran was noted to be on a continuing sleep study. The diagnosis was alcohol abuse; PTSD; Insomnia; and, dysthymia. An August 2009 VAMC sleep study report diagnosed obstructive sleep apnea. Subsequently, in August 2009, the Veteran filed a claim for service connection for sleep apnea. During his September 2011 videoconference hearing, he testified that some of his comrades would tell him that he snored too much during service and constantly kept then awake. Prior to 2010, his wife constantly woke him up due to his snoring, but then it reached a point where she told him that it sounds liked he was choking. He has used a C-PAP at night for about 1 year. Prior to the C-PAP he just had to deal with it. At his February 2012 VA examination, the Veteran reported that he had a history of loud snoring with periods of apnea as well as hypersomnolence and chronic fatigue during the day. He reported that these symptoms started while he was in the military service. The VA examiner noted that she could not find that the Veteran was ever seen during his military service for complaints of loud snoring with periods of apnea, hypersomnolence, and fatigue. The Veteran also could not recall ever being seen for sleep apnea symptoms in service. The examiner noted that the Veteran was diagnosed with sleep apnea in August 2009, which was 5 years after his release from service. He was issued a C-PAP machine by the VA; and reported averaging at least 4 hours of uninterrupted sleep a night and awoke feeling refreshed and rested. Therefore, the examiner opined that the Veteran's sleep apnea was less likely than not related to his military service. The Board found the examination inadequate for rating purposes and requested a VHA medical opinion in September 2012. In an October 2012 VHA medical opinion, a physician reviewed the claims file and medical records. He noted that "mild" sleep apnea was found in 2009 during a home based sleep study performed by the VAMC. Treatment records of file including April 2005 VA records referred to various sleep associated issues such as insomnia, PTSD symptoms, and low total sleep times. This description was not specific for or consistent with a diagnosis of sleep apnea. The symptoms were consistent with a psychological disorder and were common causes of trouble sleeping, feeling tired, and creating a sense of low energy. At various points the record referred to the Veteran getting a subjective 4 hours of sleep a night. This was insufficient for the vast majority of people to be able to sustain functional wakefulness during the day. The physician referenced an August 2010 clinical record from the Ft. Dix military clinic that noted flashbacks, nightmares, difficulty falling asleep, and awakening easily. He explained that if sleep apnea had been responsible for these symptoms, they would have been expected to have been reversed by effective treatment with a C-PAP. This does not appear to have been accomplished as his reported symptoms have continued. The Veteran had testified that other soldiers smacked him to wake him to stop snoring. His wife also told him about disturbing her and his children's sleep. This rose to the level of nuisance but not a clinical disease state. The Veteran estimated his fatigue condition began approximately 8-10 year ago. The symptoms did not prevent him from active duty service. Based on a review of the records and addressing the Board's issues, the examiner opined that "it is my opinion that [the veteran's] sleep apnea does not meet the requirements stated above and is less likely than not (not 50% probability or more) that the sleep apnea had its onset in active service or is otherwise the result of disease or injury in the service," Analysis Upon review of the record, the Board finds the October 2012 VHA medical opinion to be factually accurate, fully articulated, and contains sound reasoning. The VHA medical opinion considered the Veteran's reported history, service treatment records, and post-service treatment records. Additionally, the VHA medical opinion was generated by a medical doctor who was a Diplomat, of the American Board of Internal Medicine with subspecialty in sleep medicine who had the training and expertise necessary to offer an etiology opinion. In his opinion, he accounted for the Veteran's symptoms and explained alternative etiologies. Therefore, the October 2012 VHA Medical Opinion is afforded significant probative value. Significantly, there is no other medical opinion of record regarding the etiology of the Veteran's sleep apnea. The Board recognizes that the Veteran is competent to report the onset of symptoms in service, and that he experienced breathing and sleep difficulties. Additionally, his spouse, as a lay person, can report signs of the Veteran's sleep difficulties that she is able to observe through her senses. To this extent, their reports are of some probative value. Ultimately, however, the Board places far more probative weight on the opinion of the October 2012 VHA medical opinion, which considered the Veteran's complaints, but also considered the service treatment records, test results, and other reports of record. The Board is within its province to weigh the Veteran's statements 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, 307 (2007). As indicated above, the most probative evidence of record indicates that the Veteran's sleep apnea is not in any way related to active service. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for sleep apnea. The Board has considered the record and the Veteran's and other lay assertions, and finds that the preponderance of the evidence is against the claim of entitlement to service connection. Consequently, the doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs