Citation Nr: 1308948 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 07-24 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a sinus condition, claimed as sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from June 1977 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In March 2012, the Board remanded this matter for additional development. The issue of entitlement to service connection for a sinus condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Sleep apnea is shown to be etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303(a), (d) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by 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). 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) 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. In light of the Board's favorable decision in this case, no further discussion of the duties to notify and assist is necessary. II. Analysis of Claim Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In this case, as is discussed fully below, the claimed condition is not one of those listed in 38 C.F.R. § 3.309(a), and therefore, the provisions of 38 C.F.R. § 3.303(b) are not for application in this case. In order to prevail on the issue of service connection on the merits, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As lay person, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a specific disability. Furthermore, the question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that sleep apnea manifested in service. At the Board hearing, the Veteran testified that his sleep problems started after basic training. The Veteran testified that his wife would wake him up and tell him he was choking. The Veteran testified that he initially sought treatment for sleep apnea in 2005 or 2006. The Veteran had active duty service from June 1977 to April 1983. Service treatment records do not reflect complaints or findings of sleep apnea. The service treatment records show that the Veteran was seen in June 1979 with a complaint of drowsiness that was related to Benadryl. Although sleep apnea complaints were not noted in service, the Board finds the Veteran's statements regarding sleep problems during service competent and credible. Buchanan v. Nicholson, 451 F.3d at 1336-37 (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection). Post service medical records reflect complaints of sleep disturbances and treatment of obstructive sleep apnea. A VA mental health treatment record dated in December 2003 reflects that the Veteran reported sleep problems, which had increased in the past month. Complaints of a sleep disturbance were noted in VA treatment records dated in July 2004. VA records dated in February 2005 reflect that an evaluation for obstructive sleep apnea was recommended. A report of a VA sleep study, dated in December 2006, noted a diagnosis of severe obstructive sleep apnea. VA outpatient treatment records show that the Veteran was seen in February 2007 with a chief complaint of obstructive sleep apnea. The Veteran was referred for surgery for uvulopalatopharyngoplasty with tonsillectomy, septoplasty and inferior turbinate hypertrophy reduction. The Veteran had a VA examination in July 2012. The Veteran reported that he was initially diagnosed with obstructive sleep apnea in 2006. The VA examiner indicated that the Veteran's symptoms of sleep apnea include persistent daytime hypersomnolence. The VA examiner indicated that a sleep study had been performed, and the Veteran had documented sleep disordered breathing. The VA examiner indicated that the Veteran underwent uvulopalatopharuyngoplasty with tonsillectomy, septoplasty and inferior hypertrophy reduction in February 2007. The VA examiner noted that the Veteran's wife told him in 1979 to 1980 that he had episodes where he would stop breathing in his sleep and had loud snoring. The Veteran reported that, while on field maneuvers and out sleeping in tents, his bunk mates would tease him about how loud he was snoring. The Veteran reported that he would stop breathing for long periods of time while sleeping. The Veteran reported that he went to sick call and reported what his wife and others said, but they said there was nothing to be done about it. The Veteran reported that he had always had problems with being sleepy during the day. The VA examiner opined that, though the Veteran was diagnosed with sleep apnea in 2006, he did in fact have this yet to be diagnosed condition while in the military in 1979 or 1980. In an August 2012 addendum, the examiner indicated that the claims file was reviewed and no correction to the July 2012 examination report was needed. The July 2012 VA medical opinion provides competent medical evidence that sleep apnea manifested during active service and is based on the credible statements of the Veteran as to symptoms in service. The record does not contain a medical opinion to the contrary. Based upon the favorable medical nexus, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C.A. § 5107. ORDER Service connection for sleep apnea is granted. REMAND Additional development is necessary with respect to the Veteran's claim for service connection for a sinus condition claimed as sinusitis. The Veteran had a VA examination in July 2012. The examination report indicated that the claims file was not available for the examiner's review. The VA examiner indicated that the Veteran had rhinitis. The VA examiner noted that, at the present time, the Veteran provided a history of mild allergic rhinitis under what appeared to be adequate control with cetirizine. The VA examiner noted that a CT of the sinuses was normal in 2006 and failed to reveal evidence of significant chronic sinusitis at the present time. Subsequently in July 2012, the VA examiner reviewed the claims file and provided the requested medical opinion. The VA examiner stated that he was unable to find the presence of chronic sinusitis. The VA examiner indicated that a review of documents other than the service medical records failed to provide credible evidence of chronic sinusitis. The VA examiner indicated that, at the time of the July 2012 VA examination, he noted that the Veteran provided a history of only mild allergic rhinitis that appeared to be under control with cetirizine. The VA examiner stated that the Veteran's CT of the sinuses was normal in 2006 and failed to reveal evidence of chronic sinusitis in July 2012. The VA examiner noted that the Veteran's nasal airway was very patent, having been corrected with surgery in 2007. The VA examiner noted that there was no evidence of mucosal edema. The VA examiner indicated that no mucopus, crusting, or nasal polyps were present. The VA examiner stated that one would be hard-pressed to state that a chronic sinus condition might be present. The VA examiner opined that it is therefore his opinion that it is "less likely than not" that sinusitis might be causally or etiologically related to the Veteran's active service. The VA examination did not address the etiology of allergic rhinitis. On the January 1977 entrance examination, the Veteran denied a history of hay fever and ear, nose or throat trouble. The clinical evaluation of the nose, sinuses, mouth and throat was normal. Service treatment records reflect diagnoses of hay fever. A March 1983 entry noted allergies-hay fever and sinusitis. An April 1983 entry noted a history of hay fever. The Veteran reported a complaint of hay fever in May 1983. Post-service treatment records reflect assessments of rhinitis. An April 2004 VA treatment record noted an assessment of allergic rhinitis/ sinusitis. A January 2006 VA medical record noted an assessment of allergic rhinitis with likely early sinusitis. An VA allergy clinic treatment record dated in September 2006 noted an assessment of rhinosinusitis. A VA treatment record dated in May 2009 noted an assessment of chronic rhinitis. In light of the in-service findings of hay fever and the evidence of post-service diagnoses and treatment of allergic rhinitis, the Board finds that a remand is warranted in order to obtain an addendum opinion regarding the etiology of allergic rhinitis. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the physician who performed the July 2012 VA examination or a suitable substitute. The VA examiner should provide an opinion as to whether current allergic rhinitis is at least as likely as not (50 percent or greater likelihood) had its onset in service or is otherwise related to the Veteran's active service. The examiner should address the service treatment records which show treatment for complaints related to allergies and hay fever. Only if deemed necessary, should the Veteran be afforded a new VA examination by an appropriate physician. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and should explain why an opinion cannot be provided without resort to speculation. 2. Following the completion of the requested actions, readjudicate the remaining claim for service connection for a sinus condition. If the claim remains denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs