Citation Nr: 1319490 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 08-07 334 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for obstructive sleep apnea on a direct service connection basis. REPRESENTATION Appellant (hereinafter the Veteran) is represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from June 1983 to July 1987, and February 1988 to January 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the RO in San Diego, California. The Veteran testified at a hearing before a Decision Review Officer in March 2009, and a transcript of this hearing is of record. The issue on appeal was previously adjudicated by the Board in a decision dated in September 2011. In that decision, the Board denied service connection for sleep apnea on direct and secondary service connection bases. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In July 2012, a designee of the VA Secretary and the Veteran's attorney agreed to a Joint Motion for Partial Remand (Joint Motion). In the Joint Motion, the parties stipulated that "Appellant raises no argument with regard to the Board's finding that his sleep apnea is not related to his service-connected asthma. Therefore, that portion of the Board's decision should not be disturbed." In an Order dated in July 2012, the CAVC vacated in part the Board's September 2011 decision and ordered a remand "for action consistent with the terms of the joint motion." While the parties to the Joint Motion have specified that the secondary service connection theory of etiology is no longer part of the appeal, and the CAVC specifically vacated and remanded the appeal in "part," the CAVC Order went on to characterize the "part" that was vacated and remanded as "entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected asthma." The Board attributes the inclusion of the secondary service connection theory of entitlement in the CAVC's characterization of the issue to administrative error. In fact, the Order specifies that it implements the Joint Motion, and the Joint Motion makes it abundantly clear that the secondary service connection theory is no longer contested. The Board has characterized the issue accordingly. The issue of secondary service connection is not before the Board or the RO at this time. 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. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. Obstructive sleep apnea is not listed among the diseases for which a presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered. 3. Obstructive sleep apnea is not related to an injury or disease in service. CONCLUSION OF LAW Obstructive sleep apnea was not incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Certain specific conditions are considered chronic diseases under VA Law. These include the following: Anemia, primary; Arteriosclerosis; Arthritis; Atrophy, progressive muscular; Brain hemorrhage; Brain thrombosis; Bronchiectasis; Calculi of the kidney, bladder, or gallbladder; Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed); Cirrhosis of the liver; Coccidioidomycosis; Diabetes mellitus; Encephalitis lethargica residuals; Endocarditis. (This term covers all forms of valvular heart disease); Endocrinopathies; Epilepsies; Hansen's disease; Hodgkin's disease; Leukemia; Lupus erythematosus, systemic; Myasthenia gravis; Myelitis; Myocarditis; Nephritis; Other organic diseases of the nervous system; Osteitis deformans (Paget's disease); Osteomalacia; Palsy, bulbar; Paralysis agitans; Psychoses; Purpura idiopathic, hemorrhagic; Raynaud's disease; Sarcoidosis; Scleroderma; Sclerosis, amyotrophic lateral; Sclerosis, multiple; Syringomyelia; Thromboangiitis obliterans (Buerger's disease); Tuberculosis, active; Tumors, malignant, or of the brain or spinal cord or peripheral nerves; Ulcers, peptic (gastric or duodenal)(A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data. 38 C.F.R. § 3.309(a). Where one of the above chronic diseases is shown to be chronic in service (or within the presumptive period under § 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). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and any of the chronic diseases listed above becomes manifest to a degree of 10 percent within 1 year from date of termination of such service (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years), such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that 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); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). Analysis The Veteran is seeking service connection for obstructive sleep apnea. He contends that this condition began in service and continues currently. The Board notes initially that one of the stipulations in the Joint Motion was that, in its September 2011 decision on this same issue, the Board did not adequately address the provisions pertaining to continuity of symptomatology after service, as set out in 38 C.F.R. § 3.303(b). That subsection provides that, if one of the conditions enumerated under 38 C.F.R. § 3.303(a) is noted during service, but is not shown to be chronic, then, generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In this regard, "obstructive sleep apnea" is not a chronic disease listed under 38 C.F.R. § 3.309(a), therefore, the Board finds that the presumption of service connection under 38 C.F.R. § 3.307 does not apply, and the provisions regarding chronicity and continuity under 38 C.F.R. § 3.303(b) also do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, the joint motion on this point is rendered moot. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that obstructive sleep apnea is not etiologically related to an injury or disease in service. The Veteran's service treatment records reflect no treatment for or complaint of obstructive sleep apnea during service. In 1988, during his second period of service, the Veteran was treated for exercise-induced asthma. He was unable to complete physical readiness training. This resulted in a physical evaluation board in January 1990. A physical examination conducted at the time resulted only in the diagnosis of asthma. The Veteran acknowledges that there was no diagnosis of obstructive sleep apnea in service, or until 2001; however, he now asserts that he experienced symptoms of obstructive sleep apnea during service. The Veteran testified that he has had the condition since his family noticed it in the summer of 1988. The Veteran reported to the examiner during a VA respiratory examination in July 2010 that, during service, he slept separately from other sailors and there were no complaints of loud snoring; however, on occasional visits to his mother's house, he was told that he snored loudly. Other evidence conflicts with these recent assertions on the part of the Veteran that he was told by his mother during service that he snored loudly. For example, the Veteran completed a detailed history report in February 1990 while being evaluated for asthma. His answer to the question, "[d]o you snore?" was "[no idea]." At an October 2001 VA clinical visit, the Veteran also reported that he was unsure of snoring. The Veteran's lack of knowledge as to whether he snored in February 1990 and again in October 2001 directly conflicts with his recent assertion that his mother had told him as early as 1988 that he snored loudly. In addition, the Veteran's mother submitted a letter on the Veteran's behalf stating that the Veteran used to stay with her and she observed the Veteran stop breathing while sleeping on the couch. The Board will address the significance of this report in more detail below; however, in contrast to the Veteran's recent account, the Veteran's mother does not report having heard loud snoring. As fact finder, the Board is obligated to determine whether lay evidence is credible. Buchanan, 451 F.3d at 1337. In analyzing credibility, the Board is justified in taking into account multiple factors, including possible bias and inconsistencies within the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed.Cir.2006). Here, the inconsistencies in the various accounts, including a direct conflict in the Veteran's contemporaneous and recent statements, leaves the Board to conclude that the Veteran's recent account of having been told during service that he snored loudly is not accurate. Further support for this finding comes from the fact that, when the Veteran filed the current claim in July 2006, he did not assert that he had onset of symptoms in service, but asserted that his obstructive sleep apnea was secondary to his service-connected asthma. It was only after the denial of his claim on the basis of a medical opinion that asthma was not a risk factor for obstructive sleep apnea, that the Veteran began asserting (December 2006 notice of disagreement) that his obstructive sleep apnea started in service. Based on these facts, as a whole, the Board must make the following factual finding: the Veteran is not an accurate historian of this disability. Also significant, beyond the above, the current claim was not the first claim for disability compensation filed by the Veteran since service separation. The Veteran filed a claim in January 1990; however, at that time, he noted only asthma as a disability related to service. In July 1993, the Veteran filed a claim seeking an increased rating for asthma, but did not mention sleep apnea. While inaction for many years regarding filing a claim is not necessarily indicative of the absence of symptomatology at that time, where, as here, a veteran takes action regarding other claims, it is reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated as early as January 1990 that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in another instance where he believed himself entitled to benefits. In such circumstances as these, it is reasonable to expect a complete reporting. Thus, the Veteran's inaction regarding a claim for service connection for obstructive sleep apnea, when viewed in the context of action regarding another claim, is interpreted as indicative of the lack of obstructive sleep apnea symptomatology at that time. The post-service clinical evidence reveals no complaint or treatment for sleep apnea until a December 2001 sleep study; however, the Veteran was examined and treated for respiratory complaints during this period. He was afforded a VA examination in February 1990 to evaluate his asthma, but did not report symptoms of obstructive sleep apnea at the time. A January 1994 VA examination for asthma also reveals no report of obstructive sleep apnea and no pertinent findings. This is not a silent record. The Veteran was examined for respiratory symptoms, but did not report symptoms of sleep apnea when it would have been reasonable to do so, and he was not diagnosed with sleep apnea. While the Board has found that the Veteran's recent assertion that he was told during service by his mother that he snored loudly is inaccurate, the Board acknowledges the written account by the Veteran's mother that she observed the Veteran stop breathing as he slept. The Board finds nothing inherently incredible in this account; however, the Veteran's mother referred to two periods in her type-written letter. She stated in the second paragraph that, around the year 1998 (corrected by pen to read 1988), the Veteran was stationed in Oxnard City and was visiting her often. In a separate paragraph, she noted that, during "the years 1990," which the Board interprets as a reference to the 1990's, the Veteran stayed with her for several months. The Veteran's mother specifically noted that this period when the Veteran stayed with her was after he separated from the service. In the fourth paragraph, she reported a sudden change in health with shortness of breath and trouble sleeping, and she observed the Veteran stop breathing while sleeping on the couch. Based on the flow of events in the letter, it is more reasonable to associate the observations of sleep disturbance to the second period of time identified in the letter, i.e., the 1990's, after service, than to associate them with the first time period, during service. Even assuming the credibility of the account, it does not tend to relate onset of disturbed sleep symptoms to service, and is therefore not probative on this point. Turning to the evidence regarding etiology, the Board obtained an opinion from a VA sleep specialist in February 2013. The examiner reviewed and discussed the Veteran's service records. He noted that the Veteran was overweight (BMI of 28 based on vital signs taken on September 1989: height of 68 inches and weight of 187 lbs). He noted that there was no medical documentation of snoring, witnessed apneas, gasping/choking, morning headaches, difficulty with memory or concentration, daytime sleepiness, or fatigue and sleepiness while driving, any of which could be suggestive of possible obstructive sleep apnea. He noted that no fellow soldiers reported that the Veteran snored, though the Veteran reported that he slept separately from his other fellow soldiers. He also noted that, according to the Veteran, his mother reported loud snoring during the time the patient was in service. The VA sleep specialist noted that, a record dated January 1989 (actually the February 1990 report; January 1989 is the date of the pre-printed form) reads: "Do you snore"? with the Veteran answering "[no idea.]" The Veteran reported restless sleep and attributed this to asthma. The VA sleep specialist noted that neck circumference was never documented in the medical records. He found that, during his years in service, the Veteran did not have any history of hypertension, diabetes, mood disorder, coronary artery disease, arrhythmia or stroke (medical illnesses that could be linked to possible obstructive sleep apnea). Based on these reviewed data and using currently validated screening tools for obstructive sleep apnea (Berlin questionnaire and STOP-BANG questionnaire), the VA sleep specialist found that the Veteran falls in the low-probability of having sleep apnea during his years in service. The VA sleep specialist continued that, years after his time in the military, more recent medical records show that the Veteran gained significant weight (BMI of 36 based on weight of 253 Lbs, height of 70 inches based on vital signs taken on July 2010) and developed hypertension, chronic headaches, impaired fasting blood glucose, and gastroesophageal reflux disease. He was eventually diagnosed to have obstructive sleep apnea based on a sleep study done in December 2001. The VA sleep specialist opined that there is lack of evidence to support the claim that the Veteran's obstructive sleep apnea developed when he was in service. According to the sleep specialist, the obstructive sleep apnea likely developed years after his time in service. The Veteran submitted an April 2013 opinion from a private clinician, who identified herself as an expert in sleep medicine. Her opinion was that sleep apnea developed during the years of active duty. Her rationale was that sleep apnea does not come on suddenly but slowly develops and worsens, usually over many years. The development of sleep apnea takes place over the course of an individual's adulthood, usually beginning with snoring in a young man and gradually worsening, with more frequent breathing pauses, more oxygen desaturation episodes, and daytime sleepiness. The private sleep specialist found that, based on the results of the home sleep study recorded in 2001, the Veteran's sleep apnea took 15 years to develop; and, given the obstructive sleep apnea, the Veteran surely did have sleep apnea during his active duty years. The private sleep specialist noted that, during his active duty years, the Veteran was told by others that he snored persistently during sleep and he was observed to have trouble breathing when asleep. He did not know that it was abnormal to snore and he did not realize that he was having repetitive breathing pauses during sleep. He thought that his poor sleep quality and his fatigue were due to his duty schedule and he did not suspect until much later in his life that he actually had a significant disorder of sleep. The private sleep specialist noted that the formal diagnosis of sleep apnea requires a sleep study. She acknowledged that the Veteran did not have a sleep study while on active duty and was not evaluated for sleep apnea until 12 years after his discharge from active duty. However, she found that he had symptoms of sleep apnea while on active duty and after his discharge. The private specialist based her opinion on her expert knowledge of sleep apnea and how apnea worsens over the course of an individual's lifetime, on the objective findings of the Veteran's sleep study evaluations, on the Veteran's medical history, and on his sleep history. It is the Board's responsibility to evaluate the evidence and to assign each report or opinion its due probative weight. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In reviewing the evidence, the Board is free to favor one medical opinion over another if the Board provides an adequate statement of reasons or bases. Id.; see also 38 U.S.C. § 7104(d)(1). The Board finds the opinion of the private sleep specialist linking the onset of obstructive sleep apnea with service to be less persuasive than the opinion of the VA sleep specialist. The reason for this finding is that the private opinion is inextricably based on an inaccurate factual predicate: The Board has found above that the Veteran's recent account that he was told while in service that he snored loudly is not accurate. Moreover, the Veteran's mother's account did not relate her observations of sleep disturbance to service, but to the post-service period when he lived with her. This information was cited by the private specialist as a basis for her opinion that there were symptoms of obstructive sleep apnea in service. Specifically, she linked the onset of sleep apnea to snoring in a young man, gradually worsening with more frequent breathing pauses. To some extent the private sleep specialist appears also to have based her opinion on the general time-line of development of obstructive sleep apnea, typically starting in youth and progressing to later years; however, she did so within the context of her specific finding that the Veteran demonstrated symptoms of sleep apnea while on active duty and after his discharge from the Navy. Again, the only in-service symptom identified by the Veteran was snoring, which the Board has deemed to be inaccurate. The private sleep specialist also made a finding that, based on the results of the 2001 sleep study, the Veteran's sleep apnea took 15 years to develop; and given the obstructive sleep apnea, the Veteran surely did have sleep apnea during his active duty years. The specialist seems to be asserting that it would have taken 15 years for the Veteran's obstructive sleep apnea to have progressed to the point it was in 2001; however, this is not entirely clear from her report, and the basis for this assertion is not provided. While the Board is not competent to determine the period of onset of obstructive sleep apnea, and the Board does not question the knowledge and expertise of the private sleep specialist, the Board must evaluate conflicting opinions based on the reasoning provided. Given that an equally competent VA sleep specialist reached a different conclusion as to the time of onset, and based that conclusion on the symptomatology demonstrated in this case, at least some explanation is necessary for the Board to accept the assertion of the private sleep specialist that a 2001 diagnosis necessarily implies onset of obstructive sleep apnea 15 years prior. No explanation is offered other than the private sleep specialist's experience and expertise in treating sleep apnea. The Board also notes that the asserted 15-year devolpment period must be viewed in the context of her other finding, discussed above, that the onset of sleep apnea is typically accompanied by snoring. The private specialist also asserted that untreated sleep apnea may cause or exacerbate other disorders and abnormalities that the Veteran has, such as hypertension. In addition, she asserted that poor sleep due to untreated sleep apnea may contribute to weight gain and to difficulty losing weight. She noted that the Veteran has had difficulty with weight management. She asserted that untreated sleep apnea may exacerbate asthma. She noted that the Veteran had asthma on active duty. She also noted a long history of nocturia and asserted that untreated sleep apnea may cause or exacerbated nocturia. The use of the term "may" regarding each of these statements renders this portion of the opinion inconclusive. The CAVC has repeatedly and consistently rejected medical opinions raising only a possibility of a nexus as being insufficient to establish nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In essence, a medical opinion that is not conclusively stated, but asserts only the possibility of a relationship, is not probative evidence, or evidence that tends to prove the question at hand. In contrast, to the private specialist, who relied on facts found by the Board to be inaccurate (for reasons cited above), the VA sleep specialist cited primarily to facts recorded in the service records and post-service records and explained in conclusive terms how these facts, such as the lack of hypertension in service, as well as lack of diabetes, a mood disorder, coronary artery disease, arrhythmia, or stroke in service, place the Veteran in the low-probability of having sleep apnea during his years in service. The examiner also cited to and applied specific screening tools for obstructive sleep apnea. The Board finds that the VA sleep specialist's opinion is based on accurate facts and is better explained in terms of the accepted facts and history in this case than is the opinion of the private sleep specialist. Accordingly, and in light of the VA sleep specialist's opinion, the Board finds that the Veteran's obstructive sleep apnea is not etiologically related to service. The Board also acknowledges April 2008 and May 2008 notes from a VA attending physician that the Veteran requested an opinion regarding whether his obstructive sleep apnea was related to service. The attending physician wrote that she thought it was unlikely that the service caused his obstructive sleep apnea. She thought it was possible that he had undiagnosed obstructive sleep apnea while in the service if he was seen for morning headaches, fatigue, easily falling asleep, or falling asleep at the wheel. Ultimately, the attending physician did not provide an opinion as she reported she had no access to his service records. As noted above, the Veteran completed a medical history report in February 1990, shortly after service. He denied headaches on awakening, migraine headaches, or frequent headaches; he denied morning fatigue on awakening; he denied chronic unexplained fatigue; he denied frequently waking up during sleep. While he reported restless sleep, he attributed this to asthma attacks. Based on the stated criteria set forth by the attending physician, the Board finds that this evidence weighs against the presence of undiagnosed obstructive sleep apnea during service. Regarding the Veteran's assertion that his obstructive sleep apnea is related directly to service, the Board has found the underlying assertions of his account to be inaccurate. Moreover, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), establishing the etiology of obstructive sleep apnea falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In sum, the Veteran's obstructive sleep apnea is not related to service. Therefore service connection for obstructive sleep apnea is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The CAVC issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran submitted his claim for service connection for obstructive sleep apnea in July 2006. He was sent a letter in August 2006 which advised him of the information and evidence necessary to substantiate his claim. A June 2010 supplemental letter reiterated the evidence necessary to substantiate the claim and advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The claim was subsequently readjudicated. In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions and personal hearing testimony. The Veteran was afforded a VA examination in July 2010. In addition, the Board obtained an opinion from a sleep specialist in February 2013 to address the specific questions raised in the Joint Motion. This opinion is adequate because it was rendered by a medical professional based on a review of claims file. Moreover, the opinion is stated conclusively, it addresses the pertinent evidence in the claims file, and it includes a rationale that is consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). ORDER Service connection for obstructive sleep apnea on a direct service connection basis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs