Citation Nr: 1319391 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-33 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active service from May 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing in front of the undersigned in July 2011. A transcript of the hearing has been associated with the claim file. As discussed in the Board's prior decision, the Veteran originally claimed service connection for PTSD. Although entitlement to service connection for PTSD was denied in February 2008 the Board remanded the issue of entitlement to an acquired psychiatric disorder other than PTSD, based on the United States Court of Appeals for Veterans Claims' holding that VA should consider alternative psychiatric disorders within the scope of an initial claim for service connection for a specific psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2011). VA treatment records show diagnoses of other acquired psychiatric disorders other than PTSD including panic disorder, anxiety, and depression. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD 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 The Veteran's sleep apnea did not begin during service, was not caused by any acquired psychiatric disorder present, and is not aggravated by an acquired psychiatric disorder. CONCLUSION OF LAW Sleep apnea was not incurred or aggravated as a result of the Veteran's military service, and it is not caused or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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). Here, the Veteran was sent letters in July 2007 and March 2010 that fully addressed all VCAA notice elements for service connection claims, including secondary service connection. The RO readjudicated the claim in July 2012. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board acknowledges that the November 2011 remand referenced the need for a new "examination" concerning the Veteran's sleep apnea. Although the text of the remand used that term, it is overwhelmingly clear that the Board was ultimately only requesting an opinion from a sleep specialist. In the second numbered remand instruction, the Board specifically ordered that the "RO/AMC must obtain a medical opinion from a sleep specialist addressing the etiology of any diagnosed sleep apnea." The Board thus did not order a new examination. As the agency of original jurisdiction obtained the requested opinion, VA has substantially complied with the Board's request, and no further remand is warranted on that basis. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran's statements in support of the claim are of record, including testimony provided at a July 2011 Travel Board hearing. The Board hearing focused on the elements necessary to substantiate his claim and the Veteran, through his testimony and the representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Additionally, the regulations provide that service connection is warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally 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, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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 v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. 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(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks entitlement to service connection for sleep apnea. He has clearly met the first criteria for service connection - a current diagnosis. He was diagnosed with sleep apnea in April 2005, and is currently treated with a BiPAP machine nightly. 38 C.F.R. § 3.303. The Veteran asserts that his sleep apnea began in service. In support of this, he claims that he began to have trouble sleeping during service. His wife, who he married in 1972, i.e., after service, says that since they were married the Veteran had a hard time breathing at night. She states that he was a restless sleeper, that he would kick and punch in his sleep, that he snored "like a bear," and that he would "gurgle." Although those statements from the Veteran and his wife are competent to identify his sleep-related symptoms, they are not competent to provide a diagnosis of sleep apnea during service. See Kahana, 24 Vet. App. at 433. In fact, the medical evidence is clear that the Veteran did not develop sleep apnea during service, or for many years thereafter. He received treatment from pulmonologists on multiple occasions in the 1990s, many years after service, without a diagnosis of sleep apnea. For example, in May 1995, the Veteran was seen by Dr. Q.A., at which time the Veteran reported "shortness of breath over the last 2 to 3 years," mostly exertional. He denied any significant cough, but had noticed mild wheezing on occasions. His recent medical history was significant for frequent premature ventricular contractions and episodic ventricular tachycardia. Previously the Veteran had been treated for pneumonia and bronchitis. Importantly, the Veteran made no complaints regarding his ability to sleep, to include any problems breathing while sleeping. Following pulmonary function tests Dr. Q.A. diagnosed the Veteran with severe chronic obstructive pulmonary disease. Considering Dr. Q.A.'s May 1995 diagnosis, as well as subsequent reports prior to the 2005 diagnosis of sleep apnea that did not include a diagnosis of that disorder, it is evident that the disability did not begin during service. To the extent that the Veteran's statements and those of his wife are probative of the onset of a sleep disorder, those statements are outweighed by the medical evidence showing that he was not diagnosed with, and he did not clinically present symptoms of sleep apnea until many years after service. VA provided an examination for the Veteran's sleep apnea in April 2010, and obtained an addendum opinion addressing the etiology of that disorder in February 2012. In the February 2012 addendum, the examiner opined that the Veteran's sleep apnea was due to his post-service weight gain, noting that the number one risk factor for obstructive sleep apnea is being overweight. The examiner pointed out that after separating from active duty at 170 pounds, the Veteran's weight increased to 258 pounds by November 2004, a weight gain of approximately 88 pounds. The Board finds the February 2012 opinion probative and convincing. The examiner provided a thorough rationale in support of the opinion offered, and the opinion is consistent with the time between the Veteran's separation and diagnosis. Nieves-Rodriguez, 22 Vet. App. at 302 (a probative medical opinion is factually accurate, fully articulated, and based on sound reasoning). There are no competent opinions contrary to the February 2012 opinion. The Board also observes that the Veteran informed a psychiatric examiner in February 2012 that he was exposed to diesel fumes during service, and that a pulmonologist had told him that his breathing difficulties were related to exposure. Although the Veteran is competent to report a contemporaneous diagnosis, see Kahana, 24 Vet. App. at 433, the Board does not find the Veteran's report that a pulmonologist associated his breathing problems with diesel exposure to be credible. Caluza, 7 Vet. App. at 511-12. First, a lay person's account of what a physician purportedly said, filtered as it is through a lay person's sensibilities, is not competent medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Second, the Veteran's claim has been ongoing for many years, yet he did not relay this apparent diagnosis until February 2012. He had the opportunity to inform VA of the diagnosis in July 2011 at his Travel Board hearing, but did not make that assertion. Additionally, the Veteran has been seen by many pulmonologists since the mid-1990s, and there is no evidence that he has ever informed a pulmonologist of his claimed diesel-fume exposure, much less that a pulmonologist has actually diagnosed the appellant with sleep apnea secondary to diesel fume exposure. The only individual to whom the Veteran made such a claim was a psychiatric treatment provider. Considering the circumstances of the Veteran's disclosure, as well as the inconsistency of that disclosure with the other evidence of record, the Board does not find the Veteran's claim credible. Id. The weight of the competent, credible evidence is against finding that the Veteran's sleep apnea had its onset during, or is otherwise etiologically related to, his active duty service. 38 C.F.R. § 3.303. The Veteran has also asserted that his sleep apnea is due to his psychiatric disabilities. While the Board concedes that the Veteran has been diagnosed with various psychiatric disabilities, and acknowledges that the question of whether any acquired psychiatric disorder warrants service connection remains outstanding, the Board must deny the Veteran's claim on this basis as there is no competent evidence linking his sleep apnea to any psychiatric disorder. The Veteran is not competent to identify the complex potential relationship between sleep apnea and any acquired psychiatric disorder, as such an opinion requires medical training, and is outside the expertise of a layperson. Jandreau, 492 F.3d at 1376-77. Moreover, VA obtained a medical opinion addressing whether there was a relationship, either causative or based on aggravation, between the Veteran's acquired psychiatric disorders and his sleep apnea. In February 2012, a medical provider who examined the Veteran and reviewed the record opined that sleep apnea was due to the appellant being overweight. The physician opined that there was "little or no proof" in the medical literature indicating that psychiatric disorders present are significant risk factors for causing or aggravating sleep apnea. The examiner stressed that, in addition to the lack of support in the literature relating sleep apnea to psychiatric disorders, the most important factor supporting his opinion was that the Veteran's "very substantial weight gain" was the most likely cause of his sleep apnea. As such, there is no competent evidence linking sleep apnea with any service connected acquired psychiatric disability; service connection is not warranted on that basis. 38 C.F.R. § 3.310. In reaching the conclusion above 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); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for sleep apnea is denied. REMAND The Board previously remanded the Veteran's claim for service connection for an acquired psychiatric disorder for an addendum addressing the etiology of his psychiatric disability. Although VA obtained an addendum from the examiner who had previously evaluated the Veteran, the resulting opinion was factually inaccurate, and failed to address other facts relevant to the question of whether the Veteran has a psychiatric disability that began during service. Barr, 21 Vet. App. at 311 (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). As part of the remand, the examiner who conducted the May 2010 examination was requested to provide an opinion as to whether any presently-diagnosed acquired psychiatric disorder had its onset during service. The examiner ultimately opined in January 2012 that the Veteran did not have a psychiatric disability that had its onset during service. In reaching that conclusion, the examiner relied on the fact that in the Veteran's last mental health treatment session, the treating provider "indicated his anxiety and depression were secondary to his nonservice connected medical problems." Although the April 2008 treating provider did include "numerous medical problems including severe chronic obstructive pulmonary disease on Axis III of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) multiaxial system. Axis III addresses physical problems that may be relevant to mental disorders present. Id. The April 2008 provider also indicated on Axis IV, which pertains to psychological and environmental stressors that may affect the diagnosis, that the Veteran's condition was impacted by "military experiences." Similarly, the January 2012 addendum also appears potentially inconsistent with the May 2010 examination report, in which the same examiner opined that "[w]hile at this time patient has some PTSD symptoms and he might have met the full criteria for the diagnosis when he first cam[e] back from Vietnam, at this time he does not meet full diagnostic criteria for the diagnosis." In the January 2012 addendum, the May 2010 examiner also failed to address the relationship between the Veteran's in-service and post-service alcohol abuse and any acquired psychiatric disorder. Previously, in May 2010, the examiner had addressed the question of whether the Veteran's disability was caused by or the result of fear of hostile military activity while on active duty; the examiner did not address whether any disability began during active duty. In answering this question, the May 2010 report referenced the Veteran's history of alcohol abuse, including that as part of his military history, he was "drunk all the time" in the military, that he had multiple arrests for driving under the influence after separation, and that he continued to drink for many years after service. In that report, the examiner opined that the Veteran "has long standing problems with [d]epression and anxiety that account [for] his impairment in functioning. Any thoughts of Vietnam, though present do [not] impair functioning." The examiner did not indicate whether the Veteran's long history of alcohol abuse, beginning during the military and continuing for many years thereafter, coincided with the onset of any acquired psychiatric disorder inservice. Additionally, the Veteran reported in September 2007 that he began to experience panic attacks in 1967 while on active duty. Even if these attacks were not recorded in his service treatment records, the Veteran is competent to report his symptoms, and as such the examiner should address whether any in-service panic attacks coincided with the onset of any acquired psychiatric disorder. Therefore, the claims file should again be returned to the examiner to address the question of whether it is at least as likely as not that any acquired psychiatric disorder had its onset during service. The examiner must consider all relevant records in the ensuing addendum opinion. Finally, the Veteran appears to have been receiving ongoing treatment, as treatment reports from February, March, and April 2012 are of record. Ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing VA treatment records. If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. After obtaining all identified records, refer the claims file to the physician who examined the Veteran in May 2010, and who provided the January 2012 addendum, for a second addendum opinion. The examiner must review this remand, the Veteran's claims file, and any relevant records in the Virtual VA system; the ensuing addendum report should indicate that such a review occurred. The examiner is especially requested to review the April 2008 treatment provider's note providing Axis IV considerations of "military experiences," as discussed above in this remand. The examiner must opine, after considering all of the relevant evidence, including the Veteran's history of alcohol abuse that began in service, as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any acquired psychiatric disorder had its onset in service, or is otherwise etiologically related to service. The examiner must provide a complete rationale in support of the requested opinion. If the examiner cannot answer the question presented without resort to speculation, he should explain why any answer would be speculative. No further examination is necessary, unless specifically requested by a medical professional. 3. After the development requested has been completed, the RO/AMC must review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 4. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs