Citation Nr: 1310359	
Decision Date: 03/27/13    Archive Date: 04/09/13

DOCKET NO. 06-31 894A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Shamil Patel, Associate Counsel



INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from January 1953 to October 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for sleep apnea.

The Board denied the Veteran's claim in July 2009. The Veteran appealed that denial to the U.S. Court of Appeals for Veterans Claims (Court), which vacated the Board's decision and remanded the claim for additional development. The Board  remanded the claim in August 2011 for development consistent with the Court's decision. The case now returns to the Board for further review.

The Veteran's Virtual VA file has also been reviewed as part of his appeal.

In addition, the Board also previously remanded a claim for entitlement to an increased rating for posttraumatic stress disorder (PTSD) in order to provide the Veteran with a statement of the case (SOC) for that issue. See Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran was provided with an SOC in November 2011. He did not file a substantive appeal in response, and reported in a December 2011 statement that he was satisfied with the assigned rating for his PTSD. Therefore, that issue is not before the Board at this time.


FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, the competent and credible evidence demonstrates that sleep apnea is etiologically related to service.


CONCLUSION OF LAW

The criteria for a grant of service connection for sleep apnea are approximated. 38 U.S.C.A. §1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
	
In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

Service Connection

In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may 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) (2012). In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).

For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012).

A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1).

VA's General Counsel has held that in order to rebut the presumption of sound condition under 38 U.S.C. § 1111 for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003 (July 16, 2003). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has adopted the General Counsel's position. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

"Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits.

In general, the evaluation of evidence involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The Veteran's October 1954 separation examination report indicates that there were no abnormalities of his nose, sinuses, mouth and throat, lungs, or chest. Additional records contain references to unrelated conditions. 

However, all other service treatment records are not available for review. The law provides that in this circumstance, VA has a heightened obligation to explain its findings and conclusions, and a heightened duty to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet.App. 365 (1991). 

The Veteran submitted a copy of an October 1953 letter from his mother in which she expressed concern over his falling asleep while on guard duty. A VA hospitalization report dated from July 24 to August 1, 1956 indicates treatment for a physiologic reaction manifested by anxiety over a perceived cardiac condition.

The Veteran complained of loud snoring, tiredness, and apnea spells in March 2002. A diagnosis of rule out sleep apnea was rendered.

A September 2004 VA treatment note showed that the Veteran was referred to a pulmonologist for possible sleep-disordered breathing. The Veteran's reported sleep history included loud snoring and daytime hypersomnelence beginning in active service. The pulmonologist stated that the reported symptoms were consistent with sleep apnea syndrome. Based on the Veteran's reported history, the pulmonologist, Dr. C.M., opined that sleep apnea had its onset during active service. A November 2004 sleep study confirmed a diagnosis of severe obstructive sleep apnea.

In his February 2005 claim, the Veteran reported that his sleep apnea condition began while he was in the military. He had problems with staying awake, and his superiors were constantly on his case about not being able to stay awake during training. He felt tired all the time. Statements from the Veteran reflect assertions that that he had sleep apnea when he was drafted into the army and after his discharge. He experienced daytime sleepiness and nighttime snoring, and described an incident in which he fell asleep while on guard duty at night. He did not report seeking medical care for such symptoms, nor did he report that any personnel actions arose from sleep abnormalities. 

The Veteran submitted a March 2005 letter from his girlfriend of 17 years stating that she has observed the Veteran's "sleep problems" and encouraged him to seek medical treatment.

A VA examination was conducted in April 2006. The Veteran reported that he currently used a continuous positive airway pressure (CPAP) machine to treat his sleep apnea symptoms. He reported that he was a bad snorer in service, and was told that he would stop breathing for awhile, then start snoring again much more loudly. Based on the Veteran's reported history, the physician, Dr. C.T., opined that sleep apnea had its onset during service.

Dr. C.T. added an August 2006 addendum. He reiterated that he must rely on the Veteran's reports and had no way to independently verify the Veteran's reported history of snoring and falling asleep in the daytime. He also stated that daytime sleepiness is a primary symptom of sleep apnea and that the letter from the Veteran's mother reflected that the Veteran fell asleep on guard duty.

An October 2006 handwritten note on the August 2006 addendum was authored by another VA physician, Dr. M. He stated that there is "no way" to connect the Veteran's reported history of snoring and somalence to the current sleep apnea diagnosis without evidence provided by a sleep study, and that such a diagnosis would be "pure speculation."

A separate October 2006 opinion from the Veteran's VA physician, Dr. J.N, stated that he had treated the Veteran since 1981. He reviewed the Veteran's records from July 1956 to August 1956 and concluded that the Veteran had sleep apnea while serving in the Army from 1953 to 1954.

Another VA examination was conducted in December 2011. The Veteran reported that he had symptoms of daytime sleepiness at least three years prior to entering military service. He continued to experience this in service, and was told by other soldiers that he was snoring at night. He never consulted anybody regarding his sleep problem during service, as there was no aggravation of his daytime sleepiness during that time. He was not diagnosed or treated for sleep apnea during service, and did not seek any consultation for the condition following his discharge. After a review of the claims file, the examiner stated that the Veteran's obstructive sleep apnea was a preexisting condition that was not aggravated by service, based on the Veteran's history of symptoms prior to entering service and his reports that his condition did not worsen during service. The examiner also noted that the available treatment records did not reflect any diagnosis or treatment of sleep apnea during service or within a 50 year period after service.

The Board will accord the Veteran the benefit of the doubt and grant service connection for sleep apnea.  The Veteran is competent to report sleep difficulties while in service and he is currently diagnosed with the condition. As to the question of a nexus between service and the current diagnosis, the overall weight of the evidence is at least in equipoise as to whether that condition had its onset during service.

Initially, because the Veteran's enlistment examination is not available for review, he is presumed to have been in sound condition at the time of his enlistment. See Lee v. Brown, 10 Vet. App. 336, 339 (1997); Doran v. Brown, 6 Vet. App. 283, 286 (1994) (the presumption of soundness attaches where a portion of the Veteran's service medical records, including his service entrance examination report, were unavailable and were presumed to have been lost in a fire).

The evidence demonstrating that the Veteran's condition preexisted service consists of the December 2011 VA opinion, which itself is based primarily upon the Veteran's own statements that his sleep apnea symptoms existed prior to service. Notably, the Veteran is competent to report experiencing symptoms such as snoring and daytime somnolence.

The Court has held that lay statements by a veteran concerning a preexisting condition, alone, are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). However, in determining whether a condition pre-existed service, lay evidence must still be considered. That is, the Veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the condition, and lay and medical evidence concerning the inception, development and manifestations of the condition must all be considered. 38 C.F.R. § 3.304(b). See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). 

Moreover, while contemporaneous clinical evidence or recorded history may often be necessary to satisfy the heavy burden of rebutting the statutory presumption of soundness, there is no absolute rule in the statute, the regulation, or the case law requiring such evidence before the presumption can be rebutted. Harris v. West, 203 F. 3d. 1347, 1351 (Fed. Cir. 2000). Where a later medical opinion is based on statements made by the veteran about the pre-service history of his condition, contemporaneous clinical evidence and recorded history may not be necessary. Id. 

Such an opinion exists in this case. However, it is predicated upon the Veteran's statements regarding the onset of his sleep apnea symptoms prior to service. These statements are inconsistent with previous statements made by the Veteran that his condition began while he was in the military. Therefore, this evidence does not represent the clear and unmistakable evidence necessary to rebut the presumption of soundness.

The Veteran's sleep apnea did not exist prior to service. The remaining evidence consists of the Veteran's statements regarding his symptoms in service, as well as various medical opinions. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id.

The October 2006 opinion from Dr. J.N. stated that he reviewed the Veteran's records from July 1956 to August 1956 and concluded that the Veteran had sleep apnea while serving in the Army from 1953 to 1954. This opinion is afforded little probative value, as it is not clear how the referenced records, which concern a physiologic reaction manifested by anxiety, relate to the Veteran's sleep apnea.

The September 2004 opinion from Dr. C.M. and April 2006 VA examination opinion from Dr. C.T. concluded that the Veteran's sleep apnea had its onset during active service. Dr. C.T. generally reiterated his conclusion in his August 2006 addendum. These opinions were based on the Veteran's history of symptoms during service. As noted above, these statements are inconsistent with later assertions that he had symptoms of sleep apnea prior to service. However, the Veteran is presumed to have been in sound condition at the time of enlistment. Therefore, his account of symptoms during service, and opinions based on that account, are entitled to some probative weight.

Otherwise, and given the absence of the whole of the service treatment records, there is no evidence to contradict the Veteran's competent assertion of having had in-service sleep difficulties. The Board has considered the October 2006 opinion of Dr. M. stated that there is "no way" to connect the Veteran's reported history of snoring and somnolence to the current sleep apnea diagnosis without evidence provided by a sleep study, and that such a diagnosis would be "pure speculation, " However, Dr. C.T.'s statements that symptoms of snoring, stopped breathing, and especially daytime sleepiness are sure signs of sleep apnea triggers the benefit of the doubt doctrine. When these opinions are viewed collectively, the evidence is in equipoise as to whether the Veteran's sleep apnea had its onset during service.  Therefore, when reasonable doubt is resolved in the Veteran's favor, service connection for sleep apnea is appropriate.


ORDER

Service connection for sleep apnea is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs