Citation Nr: 1310355 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-07 229 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypoxemia, to include as secondary to sleep apnea. 2. Entitlement to service connection for a heart disability, to include as secondary to sleep apnea. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1980. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. In August 2011, the Veteran testified before an Acting Veterans Law Judge of the Board; a transcript of the hearing is of record. In his February 2010 substantive appeal (VA Form 9), the Veteran raised a claim of entitlement to a total disability rating based on individual unemployability (TDIU). The Board referred a claim for TDIU in its September 2012 remand, but it is unclear whether the directed action has been accomplished. As such, a claim for TDIU is once again referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's hypoxemia either began during or was otherwise caused by his military service, or was secondary to or aggravated by his sleep apnea. 2. The weight of the evidence is against a finding that the Veteran's heart disability either began during or was otherwise caused by his military service, or was secondary to or aggravated by his sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection for hypoxemia have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for service connection for a heart disability have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. § 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. Service connection may also be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Generally, a disability which is proximately due to or the result of a service- connected disease or injury will be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. In November 2008, the Veteran filed a claim seeking service connection for hypoxemia, and in January 2009 he sought service connection for heart problems, both of which he considered to be secondary to his service-connected obstructive sleep apnea (OSA). It is noted that the Veteran did not provide any indication as to why he believed there was such a relationship. As an initial point, hypoxemia is defined as "deficient oxygenation of the blood." Dorland's Illustrated Medical Dictionary 908 (32d ed. 2012). That is, hypoxemia is essentially a symptom and not an actual disease. Deficient oxygenation in the blood may cause other problems, and those problems would be considered to be a disability. This is relevant in that service connection is only warranted where the evidence demonstrates disability. "Disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. Rather, the VA needs to identify a disability, not symptoms of a disability. It is not disputed that hypoxemia has been listed in the Veteran's private treatment records; but hypoxemia appears to be little more than a laboratory finding, which might lead to the development of a disability, but is not in and of itself a disability for which service connection would be warranted. See 61 Fed. Reg. 20440, 20445 (May 7, 1996) (noting that hyperlipidemia, elevated triglycerides, and elevated cholesterol were laboratory test results, and not in and of themselves, disabilities). As such, it cannot provide the basis for a valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Veteran's claim of entitlement to service connection for hypoxemia is denied. The Board is aware that it is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, even were it to be considered that the Board made an impermissible medical judgment in concluding that hypoxemia is not a disability, the evidence as discussed would still fail to establish that service connection would be warranted for hypoxemia. As an initial point, the Veteran has not alleged that either hypoxemia or heart disease either began during or was directly caused by his military service; and service treatment records fail to describe any complaints of, or treatment for, any hypoxemia or heart problems. The Veteran declined to undergo a physical examination at separation and a medical officer, after reviewing the Veteran's service treatment records, concluded that a medical examination was not required for separation. Moreover, neither hypoxemia nor heart disease was diagnosed for a number of years after service. The Veteran was diagnosed with sleep apnea in July 1995 (and this condition has subsequently been service connected); however, the Veteran has also had a history of chronic obstructive pulmonary disease (COPD) and emphysema. In addition, he has a 30 to 50 pack year history of cigarette smoking, is also morbidly obese, and has a family history of coronary artery disease (CAD). VA treatment records show a medical history of cardiomyopathy, congestive heart failure, sleep apnea, and chronic obstructive pulmonary disease, as well as other conditions. In October 2006 the Veteran underwent right and left heart catheterization, selective coronary angiography and left ventriculography. The impression of Dr. Karim was that the Veteran had moderate pulmonary hypertension, cardiomyopathy, and severe hypoxemia. He stated that it was likely that his clinical condition (hypoxemia) was secondary to sleep apnea. However, no rationale was provided for this conclusory statement and it is therefore of limited probative value. To this end, the Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). Likewise, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Dr. Karim has written several letters in this case, but as will be discussed, his assertions are universally conclusory in nature. That is, he has not explained why or how he reached his ultimate conclusion. A VA medical opinion was obtained to address Dr. Karim's assertion that the hypoxemia was secondary to the Veteran's sleep apnea. In June 2008, a VA examiner wrote that he disagreed with the conclusion that sleep apnea was causing hypoxemia when the Veteran is awake and breathing normally (and it is noted that the Veteran was using a CPAP device to regulate his sleep apnea at night). The examiner suggested that the Veteran's chronic hypoxemia was due to COPD from cigarette smoking. The examiner further stated that there was nothing in the literature to support a claim of hypoxemia when a sleep apnea patient is awake and breathing normally and the coronary angiography note did not state whether supplemental oxygen was used during the procedure, and suggested that with the low oxygen content measured in the pulmonary artery and femoral artery, he suspected it was not. The examiner concluded that the hypoxemia measured during the coronary angiogram was directly related to cigarette smoking induced COPD and not to sleep apnea. In an October 2008 letter, Dr. Karim noted that the Veteran had a history of idiopathic dilated cardiomyopathy, which was based on the findings of a coronary angiography. At that time oxygen saturation runs were performed during the heart catheterization study which revealed severe hypoxemia and that baseline arterial saturations were noted to be significantly reduced at 75 percent, which he explained was consistent with significant AV shunting. Dr. Karim indicated that the Veteran needed oxygen therapy to avoid further complications from sleep apnea and cardiomyopathy. However, in this statement, Dr. Karim did not reassert that the Veteran's sleep apnea was causing hypoxemia. In April 2009, the Veteran underwent a VA heart examination. The examiner noted the Veteran's contention that his service connected sleep apnea was responsible for his heart condition, as well as the fact that the Veteran had been diagnosed in the 1990s with sleep apnea and COPD; and diagnosed in the late 1990s with dilated cardiomyopathy, which had been treated with diuretics and antihypertensives since that time. The Veteran was also noted to have had hypertension for many years, and hyperlipidemia. He had also smoked for many years and continued to do so. The examiner noted that the April 2008 polysomnogram disclosed no severe hypoxemia, only mild, with a mean arterial saturation of 93 percent, a minimal of 8 percent, and a mean desaturation of 91 percent. However, it was found that there was no need for supplemental oxygen. The electrocardiograms had been normal except for increased voltage. The Veteran was diagnosed with dilated cardiomyopathy, obstructive sleep apnea, COPD, tobacco use, hypertension, and hepatitis C. Hypoxemia was not listed as a diagnosis. Following the examination, the examiner explained that the recent polysomnogram study had disclosed no evidence of significant hypoxemia and no need for continued oxygen use. It had also disclosed adequate treatment of the Veteran's sleep apnea. The examiner accordingly explained that there was no evidence that the Veteran's obstructive sleep apnea had resulted in his congestive heart failure. The examiner explained that dilated cardiomyopathy was a heart muscle disorder of unknown cause, but the examiner indicated that it had not been found to be related to sleep apnea by the standard references. Moreover, the examiner explained that there was no polycythemia or peripheral edema, and no changes in his electrocardiogram that would suggest such a relationship. The examiner acknowledged that sleep apnea had been associated with increased arrhythmia and increased risk of cardiovascular events, but noted that it had not been found to cause heart disease (a conclusion which the examiner stated was supported by the up-to-date publications that he had reviewed). Therefore, the examiner opined that it was unlikely that the Veteran's heart condition was related to his sleep apnea. In an August 2011 letter, Dr. Zuriqat, a private physician, opined that the Veteran's OSA "may worsen congestive heart failure." As an initial point, this statement of "may" in the context of a medical opinion is the same as "may not" and therefore is considered to be too speculative to provide the requisite nexus. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Moreover, Dr. Zuriqat did not provide any baseline for the aggravation, and VA does not concede aggravation absent such medical evidence. See 38 C.F.R. § 3.310(b). In September 2011, the Veteran submitted several articles from the internet. An article from http://apneatreatmentguide.com suggested that there might be a connection between sleep apnea and heart disease, theorizing that sleep apnea deprived the body of oxygen which was vital in the production of blood, and that when blood was in short supply it strained the heart and could lead to additional problems. However, no studies were actually cited for such a theory, and no provision was made for a case, such as the Veteran's, in which sleep apnea was being controlled with a C-PAP. An article on www.sleepfoundation.org asserted that adults with sleep apnea often had more heart trouble than those without it, citing to "research" from the American Heart Association. Yet, the article focused on the fact that sleep apnea was a disorder which went undiagnosed 90 percent of the time, unlike in the Veteran's case where it has been diagnosed for a number of years. Moreover, a doctor in the article was quoted as suggesting that treatment of sleep apnea might prevent the adverse health consequences such as heart disease, heart attack and congestive heart failure. Here, the Veteran is receiving treatment for his sleep apnea, and as noted below, it has been found to be well-controlled. Medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the treatise evidence submitted by the Veteran is generic in nature, and did not specifically address a case such as his in which sleep apnea had been diagnosed and was being successfully treated. As such, these articles are insufficient to establish that service connection is warranted. In August 2011, the Veteran testified at a hearing before the Board that he used oxygen at night in conjunction with his CPAP machine, but he denied requiring oxygen during the day. The Veteran's representative acknowledged that there was a negative opinion in the record and requested 60 days to obtain favorable evidence, but it is noted that the adequacy of the VA opinion was not specifically challenged. In a September 2011 letter, Dr. Karim opined that the Veteran's congestive heart failure was due to sleep apnea. He then stated that congestive heart failure was caused by or was otherwise the result of military service. However, once again he provided absolutely no rationale or explanation for either assertion, and thus this opinion is also of limited probative value. See Miller v. West, 11 Vet. App. 345, 348 (1998); Black v. Brown, 5 Vet. App. 177, 180 (1995). Nevertheless, given this suggestion, the Veteran was provided with a VA examination in October 2012. The examiner reviewed the claims folder, noting that the Veteran had been diagnosed with cardiomyopathy and stable congestive heart failure, as well as COPD and obstructive sleep apnea. The examiner noted that the sleep apnea was "very adequately controlled" on CPAP, as demonstrated by successful CPAP (titration during sleep studies done at the Dallas VAMC). With regard to the etiology of the Veteran's hypoxemia, the examiner opined that it was due to his COPD, which was directly related to his long smoking history. With regard to the Veteran's heart disability, the examiner found that the cardiomyopathy caused the congestive heart failure, but the examiner found that the cause of the cardiomyopathy was undetermined, which he explained was the usual case for such conditions. The examiner stated that the Veteran's sleep apnea was very stable, and was therefore not aggravating his claimed hypoxemia and/or heart disability. The examiner listed a number of recent diagnostic studies that had been conducted in 2011 and 2012, including chest x-ray, echocardiogram, nuclear cardiac stress test, and various laboratory studies; and noted that the studies had revealed a very stable patient, with no obvious myocardial ischemia (hypoxemia), and no cardiac damage with a normal ejection fraction. The lungs were also clear with no heart enlargement and no chronic congestive heart failure. Here, the VA examinations are found to be the most probative evidence of record as they are the most thorough and have been grounded in the medical evidence of record. The examiners have concluded that the Veteran's heart disease is not secondary to or aggravated by his sleep apnea, which they noted was well-controlled. The opinions also attributed the Veteran's hypoxemia (to the extent he has it) to his COPD and not to his sleep apnea. Additionally, the private opinions are wholly conclusory, simply stating it is as likely as not that the Veteran's heart disease and hypoxemia are secondary to his sleep apnea. These opinions fail to explain any mechanism for such a connection or cite to any clinical study. Moreover, they do not address the Veteran's other non-service connected risk factors for heart disease and hypoxemia such as smoking, hypertension and COPD; and the private opinions also fail to address why sleep apnea was thought to cause secondary problems when it was in fact found to be well-controlled. These inherent flaws render the private medical opinions less probative, and therefore entitled to less weight than the VA examiners' opinions. The Board acknowledges the Veteran's belief that his sleep apnea has caused or worsened his heart disease and hypoxemia. However, while he, as a lay person, is competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus in this case. As described, the weight of the evidence is solidly against the Veteran's claims and they are accordingly 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 § 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). Required notice for the hypoxemia claim was provided by a letter dated in December 2008, and required notice for the heart disease claim was provided by a letter dated in January 2009. Both letters informed the Veteran of all the elements required by the Pelegrini II Court as stated above, as well as 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 and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran testified at a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, although the presiding Veterans Law Judge during the hearing did not explicitly note the basis of the prior determinations or note the elements that were lacking to substantiate the claim on appeal, the Veteran demonstrated actual knowledge of this information. The Veteran specifically addressed evidence in support of his claims, indicating an understanding of requirements to establish the benefit sought on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Additionally, the presiding Veterans Law Judge noted the issues on appeal and provided a basic explanation of them. Accordingly, the Veteran is not shown to be prejudiced on this basis. VA will make as many requests as are necessary to obtain relevant records from a Federal Department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2). Here, the Board remanded the Veteran's claim in September 2012 to in part seek Social Security Administration (SSA) records. The SSA records were requested, but a response was received from SSA indicating that the records had been destroyed. Therefore, an additional remand is not necessary to further seek SSA records. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board remand also requested that an additional VA examination be provided, and an examination was provided in October 2012 that is fully adequate and complied with the remand. Therefore, the directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). In addition to the October 2012 VA examination, the Veteran was also provided with several other VA examinations (the reports of which have been associated with the claims file). The Board finds the most recent VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. 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 hypoxemia, to include as secondary to sleep apnea, is denied. Service connection for a heart disability, to include as secondary to sleep apnea, is denied. ____________________________________________ T. D. Jones Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs