Citation Nr: 1319299 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-28 851 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected coronary artery disease and service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a June 2008 rating decision, by the Newark, New Jersey, Regional Office (RO), which denied the Veteran's claim of service connection for sleep apnea. He perfected a timely appeal to that decision. In March 2011, the Board remanded the case for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in August 2012. In November 2012, the Board again remanded the case for further evidentiary development. Following the requested development, an SSOC was issued in March 2013. As discussed below, the Board finds that there was substantial compliance with its remand; thus, it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). A June 2013 review of the Virtual VA (VVA) paperless claims processing system reflects that VA/CAPRI records current through January 2013 are in the VVA file. The March 2013 SSOC reflects consideration of these records. FINDING OF FACT The preponderance of the evidence shows the Veteran did not have sleep apnea during service, or until many years after his discharge, and sleep apnea has not been shown to be causally or etiologically related to the Veteran's period of active duty or his service-connected coronary artery disease and/or PTSD. CONCLUSION OF LAW Sleep apnea was not incurred in, or aggravated by, active service and is not proximately due to, or aggravated by, service-connected disability, nor may such be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in April 2008 from the RO to the Veteran, which was issued prior to the RO decision in June 2008. Additional letters were issued in March 2011, July 2012, and December 2012. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, examined the Veteran, and provided explanation for their conclusions. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. II. Factual background. The service treatment records (STRs), including the pre-induction examination of January 1964, as well as the separation examination of March 1966, are negative for any complaints, findings or diagnosis of obstructive sleep apnea. On the occasion of his separation examination in March 1966, clinical evaluation of the lungs and chest was normal. Post service treatment records, including VA as well as private treatment reports, dated from May 1990 to December 2002 are negative for any complaints of or treatment for obstructive sleep apnea. The Veteran's claim of entitlement to service connection for sleep apnea (VA Form 21-4138) was received in February 2008. Submitted in support of the claim was a statement from a VA Environmental Health Clinician, dated in February 2008, informing the Veteran that the results of his Agent Orange Registry Examination revealed that he suffered from sleep apnea. Received in June 2008 were VA progress notes dated from February 2008 to May 2008 which show that the Veteran received follow up evaluation for chronic medical problems noted on his Agent Orange examination, including sleep apnea. Listed among the Veteran's medical problems were obesity, coronary artery disease, shortness of breath, and sleep apnea. Of record is a statement from Dr. Douglas Ballan, a staff physician, regarding the findings and recommendations based on an evaluation the Veteran underwent at the War Related Illness and Injury Study Center in May 2008. Dr. Ballan stated that ever since his deployment, over the years, the Veteran had been dealing with difficult issues due to his combat experiences. Dr. Ballan explained that the sleep problems described by the Veteran raised concerns about Sleep Apnea that continued despite treatment for restless leg syndrome/periodic limb movement disorder. A sleep study was recommended. Of record are treatment reports from the Vet Center, dated from March 2009 to August 2009, which reflects diagnoses of PTSD based on the Veteran's Vietnam experiences. Subsequently, a VA examination report dated in December 2009, noted a diagnosis of chronic PTSD that is severe. By a rating action in January 2010, service connection was established for PTSD, evaluated as 50 percent disabling, effective April 14, 2009. The Veteran was afforded a VA examination in April 2011. At that time, the Veteran reported a history of sleep apnea symptoms, with heavy snoring at night and sometimes witnessed apneic spells with daytime somnolence for the last several years. The Veteran had no history of narcolepsy, cataplexy, or sleep paralysis. It was noted that the Veteran had a history of PTSD. It was also noted that the Veteran had had a sleep study done in September 2006, which showed mild obstructive sleep apnea. The diagnosis for the sleep study was consistent with mild obstructive sleep apnea and the Veteran was given a CPAP treatment for 9 cm of water pressure, which he was using and was helping. Following a neurological evaluation, the examiner noted a diagnosis of mild obstructive sleep apnea. The examiner stated that the obstructive sleep apnea was mild and is not caused by PTSD. The examiner noted that there is no bearing of PTSD on obstructive sleep apnea and no causal relationship between the two; therefore, it is not related to obstructive sleep apnea. The examiner concluded that the obstructive sleep apnea is mild and is not related to PTSD. In April 2011, the Veteran's claims folders were forwarded to a VA examiner for review and opinion regarding the relationship, if any, between sleep apnea and his service-connected coronary artery disease. Following a review of the claims folders, the examiner opined that the sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner explained that the Veteran's hypertension is essential hypertension, and its etiology is idiopathic. The examiner stated that essential hypertension is not caused by or aggravated by coronary artery disease. Secondly, the Veteran's service-connected coronary artery disease does not cause or aggravate sleep apnea. The examiner further noted that sleep apnea is an upper airway condition and is not related to coronary artery disease. Received in July 2012 were VA progress notes dated from November 2001 to October 2011. These records show that the Veteran received follow up evaluation for obstructive sleep apnea. A sleep disorder consultation report, dated in March 2007, indicates that an overnight sleep study revealed findings of obstructive sleep apnea and findings consistent with periodic limb movement disorder. Of record is a DBQ medical opinion, dated in January 2013, wherein the examiner stated that the usual explanation and cause for obstructive sleep apnea is intermittent blockage of upper airway causing obstruction leading to snoring and oxygen desaturration. The examiner observed that it is noted that the Veteran has obesity and obesity can cause fatty tissue deposit around the throat and can cause upper airway obstruction. The examiner noted that the Veteran's body weight is 203 lbs, BMI 29.3, height 5'10". The examiner stated that it is at least as likely as not obesity in this patient can cause obstructive sleep apnea symptoms and conditions. Subsequently, in February 2013, the examiner reviewed the claims folder and noted that the Veteran was diagnosed with mild obstructive sleep apnea syndrome by sleep study done on September 27, 2006. He also noted that the Veteran has PTSD. The examiner explained that sleep apnea is caused by intermittent upper airway obstructive pathology and not caused or aggravated by PTSD, which is predominantly a psychiatric disorder, and so far there is no controlled study available. III. Legal analysis-Service Connection. Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish compensation for a present disability, a Veteran must show: "(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"--the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. To show 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." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When 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). Service connection may also be established for disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The provisions of 38 C.F.R. § 3.310 indicate, in pertinent part, that disability that is proximately due to or the result of a service-connected disease or injury shall 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. The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Prior to the Veteran's claim, there was an amendment made to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. It was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. As to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person 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 lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected coronary artery disease and PTSD. 38 C.F.R. § 3.102. The Board observes that the Veteran's STRs do not show that he complained of or was treated for a respiratory disorder, diagnosed as sleep apnea during his military service. Additionally, the Board notes that it appears that the Veteran did not make any complaints related to his lungs or chest at his separation examination in March 1966; his clinical evaluation and chest x-ray were negative. This is significant and will be afforded great weight and credibility because this was at a time contemporaneous to the alleged incident in question. See, e.g., struck v. Brown, 9 Vet. App. 145, 155-56 (1996). Likewise, there is no evidence of continuity of symptomatology during the intervening years after his discharge from service and the initial diagnosis. According to the medical evidence of record, the Veteran was first diagnosed with sleep apnea in March 2007, over 41 years after his discharge from service. The Board notes that, in the absence of a demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the competent evidence of record does not support the Veteran's contentions that his sleep apnea is related to his military service. Significantly, following a VA examination in April 2011, the VA examiner stated that there is no bearing of PTSD on obstructive sleep apnea and no causal relationship between the two; therefore, it is not related to obstructive sleep apnea. The examiner concluded that the obstructive sleep apnea is mild and is not related to PTSD. In another VA opinion, dated in April 2011, a VA examiner stated that the Veteran's service-connected coronary artery disease does not cause or aggravate sleep apnea. The examiner explained that sleep apnea is an upper airway condition and is not related to coronary artery disease. More recently, in January 2013, the Veteran's file was referred to a VA examiner for review and opinion regarding the etiology of his sleep apnea. Following a review of the file, the examiner observed that Veteran has obesity and obesity can cause fatty tissue deposit around the throat and can cause upper airway obstruction. The examiner stated that it is at least as likely as not obesity in this patient can cause obstructive sleep apnea symptoms and conditions. Subsequently, in February 2013, the examiner again reviewed the claims folder and noted that the Veteran was diagnosed with mild obstructive sleep apnea syndrome by sleep study done on September 27, 2006. He also noted that the Veteran has PTSD. The examiner explained that sleep apnea is caused by intermittent upper airway obstructive pathology and not caused or aggravated by PTSD, which is predominantly a psychiatric disorder, and so far there is no controlled study available. In support of his claim, the Veteran submitted a statement from Dr. Ballan, dated in June 2009, which suggests that he had sleep apnea which may be due to his combat experiences. However, there is no indication that Dr. Ballan reviewed the claims folder; and he failed to provide an explanation for the opinion. In short, there currently is no persuasive medical nexus evidence of record indicating the Veteran developed obstructive sleep apnea as a result of his service in the military, including service-connected coronary artery disease or PTSD. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'"); citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). See also Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). The implication by the private examiner is outweighed by the well-supported and well explained VA opinions. Based on the evidence of record, the Board must deny the Veteran's claim. While the Veteran is competent to testify as to his symptoms, he is not competent or qualified, as a layperson, to render a diagnosis or an opinion concerning medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Specifically, where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Given that there is no evidence that sleep apnea is related to any event in service, including service-connected coronary artery disease or PTSD, the Board must conclude that the weight of the evidence is against a finding of service connection for sleep apnea. The preponderance of the evidence is against this claim. Gilbert, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected coronary artery disease and service-connected PTSD, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs