Citation Nr: 1319008 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-30 225 ) 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. ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from September 1981 to September 1983 and from October 1984 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was remanded for further development by the Board in March 2012 and August 2012 for additional development. The case is once again before the Board for appellate action. FINDING OF FACT The most probative evidence indicates the Veteran's sleep apnea did not manifest during service and is not related to his service or his service-connected disabilities. CONCLUSION OF LAW The requirements for establishing service connection for sleep apnea, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that through a VCAA letter dated in April 2008, prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was also advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In an August 2012 VCAA letter, prior to the most recent readjudication, the Veteran was informed of the criteria for service connection on a secondary basis. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes VA treatment records, VA examination reports, service treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Board also notes that actions requested in the prior remands have been undertaken. Indeed, corrective VCAA notice was provided as requested, VA medical records were obtained, and VA medical opinions were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). 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(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant 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. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has sleep apnea that manifested during active service or is causally or etiologically related to his service-connected disabilities, which include back, right shoulder, and joint disabilities. The Veteran complained of sleep difficulties during service related to his depression and marital stress. His complaints were alleviated with the use of Ambien. The record does not contain any complaints, treatment, or diagnosis of sleep apnea during service. Post-service, the Veteran was diagnosed with sleep apnea in August 2007. The VA treatment record shows that the Veteran reported a history of onset of symptoms, including tiredness, witnessed apneas or choking gasps, and excessive daytime sleepiness, in 2004. The examiner noted the precipitating factors as weight gain. He also noted difficulty initiating sleep, vivid dreams, acting out dreams for two months, and general restlessness. The Veteran was diagnosed with obstructive sleep apnea and provided a CPAP machine. The Veteran was afforded a VA examination in March 2012. The examiner noted the diagnosis of obstructive sleep apnea, originally diagnosed in 2007. He documented the Veteran's history to include his decreased sleep in July 1996 and his use of ambien, which was discontinued in mid-August 1996. The examiner found that the disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted no documented evidence of treatment for sleep apnea while in service. Service treatment records clearly document that sleep disturbances described as decreased sleep were directly related to the Veteran's depression, associated with well-documented marital stress. He also reported improved sleep when prescribed ambien. The diagnosis of sleep apnea was made in 2007, many years after leaving service. Although there are second hand accounts reported by friends, the examiner found insufficient corroborating evidence to link his current diagnosis of sleep apnea to his active duty. Subsequently, the VA obtained an additional medical opinion regarding the Veteran's sleep apnea in J.W.M., MD. Dr. M. found that it is less likely than not that the Veteran's claimed obstructive sleep apnea was proximately due to or the result of or permanently worsened beyond the natural progression of the disease by his service-connected orthopedic disabilities, including lumbar strain with spondylolisthesis and hypertrophic change facet joint, radiculopathy of the lower extremity, arthritis of the right shoulder, chondromalacia of the bilateral knees, right ankle strain, and left knee instability. Dr. M. cited a reference article, which he provided and is included in the claims folder, noting that risk factors for obstructive sleep apnea include male sex, excess weight and measures of obesity, increasing age, ethnicity, craniofacial morphology, and family or genetic factors. Orthopedic disabilities are not risk factors. There is no scientifically based medical literature to support a causal relationship or permanent worsening beyond natural progression of obstructive sleep apnea due to orthopedic disabilities. Upon review of the record, the Board finds that service connection for sleep apnea is not warranted. While the Veteran now contends that he suffered from sleep apnea during service, the Board notes such assertion is inconsistent with the history he provided to a treating clinician in 2007. At that time, he reported a history of onset of symptoms in 2004. Such assertion is more reliable than his current statements contending sleep apnea began during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Moreover, at the time he submitted his claim, the Veteran also submitted a letter purportedly from his son's maternal grandmother. She stated that her daughter "[redacted]" was the child's mother and had died from breast cancer. She stated that she met the Veteran in 1990 when his son moved in with her. She stated the Veteran stayed with her whenever he visited his son. She further stated he had the most unusual sleeping habits and would stop breathing during the night. She noted that over the years it seems as if the condition had gotten worse, that he stops breathing more often and complains more about being tired from not getting enough sleep. The Board notes this statement is typewritten, and includes a line for a signature over the typewritten name of the grandmother, H.B.H. The form is purportedly signed by H.B.H. However, the Board further notes that the name of H.B.H.'s daughter is spelled wrong. The Board finds it extremely unlikely that H.B.H. would misspell her own daughter's name, especially in light of the tragic circumstances surrounding her untimely death. The child's birth certificate has her name spelled as "[redacted]". Such spelling is confirmed by the Social Security death index. The Board further finds it unlikely that H.B.H. would not have simply hand-corrected the spelling if it were a mere typographical error. Indeed, changing an "i" to a "y" with a pen is a very easy and simple fix, and one which a parent of a deceased child would likely do. Such did not occur here, however. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). For the reasons set forth above, the Board finds the authenticity of the lay statement from H.B.H. is highly suspect, and affords it no probative value. To the extent the Veteran believes that his current sleep apnea is due to his active service or to his service-connected disabilities, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event or disability and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, although the Veteran is competent to testify as to symptoms, the question as to the etiology of his sleep apnea is a matter requiring medical expertise to determine. Indeed, sleep disturbances may be due to a number of reasons, and such question is one typically determined by persons with medical training. Thus, on this point, the Board finds the medical evidence of record to be significantly more probative than the Veteran's lay assertion as to the cause of his sleep disturbances and onset of sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, no medical evidence of record relates the Veteran's sleep apnea to his service or to his service-connected disabilities. Multiple medical opinions of record note no connection between the Veteran's service and his sleep apnea. In any event, the Board finds the opinions of the March 2012 VA examiner and subsequent medical opinion by Dr. M. most probative. Those examiners reviewed the Veteran's claims file and determined that the Veteran's sleep apnea was less likely than not manifested during service or proximately due to or the result of the Veteran's service connected disabilities. The March 2012 examiner specifically noted the difference between the sleep complaints in service and the current disability. Dr. M. also noted the risk factors for sleep apnea, which do not include orthopedic complaints. The March 2012 examiner and Dr. M. were fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions, to include the statement provided by H.B.H. Additionally, they provided fully articulated opinions that included a reasoned analysis. Therefore, the Board finds that the examiners' opinions are of significantly more probative value than the Veteran's lay assertions. In sum, the most probative evidence indicates that the Veteran's sleep apnea did not arise in service, is not related to service, and is not related to or permanently worsened by his service-connected disabilities. Accordingly, the preponderance of the evidence is against the claim, and service connection for sleep apnea is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs