Citation Nr: 1320078 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-43 869 ) 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, to include as secondary to service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from July 1962 to July 1982. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, sleep apnea is causally related to the Veteran's active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a sleep apnea have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Assistance Act of 2000 As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's claim for entitlement to service connection for sleep apnea has been granted herein. As such, any deficiencies with regard to VCAA for this issue are harmless and non-prejudicial. II. Merits of the Claim Governing Rules and Regulations Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Here, the Board notes that the Veteran has been diagnosed with sleep apnea, which is not subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). As such, the Veteran cannot establish service connection for sleep apnea solely based on lay statements of continuity of symptomatology since service. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159 (2012); see also Grivois v. Brown, 6 Vet. App. 136 (1994). When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran claiming entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. Specifically, the Veteran contends that his sleep apnea is aggravated by his PTSD symptoms. Additionally, the Veteran has also alleged that his sleep apnea began while he was in-service. The Veteran's service treatment records show problems with sleep in-service. At the time of the Veteran's separation examination in July 1981, he reported frequent trouble sleeping. The Veteran was first diagnosed with sleep apnea in November 2005. The record reflects he is currently being treated for this condition with a CPAP machine. The Veteran submitted a December 2009 letter from his private treating physician, Dr. H. J., who was treating him for his mental health condition. Dr. H. J. noted that the Veteran had a history of sleep apnea and that there was a connection between PTSD and sleep apnea, as he had shown in the accompanying documents. Dr. H. J. concluded that it was as likely as not that the Veteran's PTSD condition contributed to his sleep apnea. The accompanying letter discussed PTSD and sleep apnea. It noted that recurrent distressing dreams and difficulty falling asleep or staying asleep were salient features of PTSD. Further, the letter stated that studies have shown that rapid eye movement (REM) sleep mechanisms were dysfunctional in patients with PTSD. Additionally, it noted that obstructive sleep apnea was often more common in REM sleep. Dr. H. J., concluded that while PTSD might not cause sleep apnea, it might exacerbate the symptoms, because there were more REM sleeps in PTSD and because the apnea episodes happened during the REM sleep, due to the decrease in the muscle tone in airway. Lastly, the Dr. H. J. stated that he could argue that PTSD worsened the sleep apnea. The Veteran was afforded a VA examination in April 2010. The Veteran reported a history of interrupted sleep for many years. Additionally, he stated that he fell asleep driving a military vehicle, though this did not result in him running off the road or a crash. He did drive off the road in his privately owned vehicle and crashed, but was uninjured. He had also fallen asleep while on duty, but his Sergeant simply talked with him and he was never written up for it. He also had another incident in 1969 while driving from Oklahoma to Fort Smith, Arkansas. Four or more years ago, the Veteran reported driving off the road because he fell asleep; he was not yet on CPAP. The Veteran reported such sleep apnea symptoms as daytime hypersomnolence, snoring, and sleep disturbance. The Veteran had a history of orthopnea, paroxysmal nocturnal dyspnea, and occasional leg swelling. The VA examiner diagnosed the Veteran with moderate obstructive sleep apnea. An effect on usual occupation was still dealing with daily fatigue. The examiner concluded that whereas untreated sleep apnea had been shown to have a negative impact on the patient's with PTSD, there was no data to show that PTSD causes sleep apnea or that it aggravates sleep apnea. The examiner concluded that it was less likely than not that the Veteran's sleep apnea was not secondary to PTSD or permanently aggravate beyond its natural progression by PTSD. However, the examiner failed to discuss the private physician's opinion previously rendered or the article the Veteran submitted discussing PTSD and sleep apnea. Additionally, the examiner did not offer a direct opinion as to whether the Veteran's sleep apnea had its onset in-service, as the Veteran reported, or was anyway related to his time in-service. In March 2013, the Board sought an expert opinion through Veterans Heath Administration (VHA) directives to determine whether it is at least as likely as not that the Veteran's sleep apnea had its onset in service or is causally related to military service and an opinion on whether it is at least as likely as not that that the Veteran's sleep apnea was caused or aggravated, i.e., permanently worsened beyond the nature progress of the disease by service-connected PTSD. In an April 2013 letter from Dr. Q. A. Shamim-Uzzaman, the Director at the AAVA Sleep Disorder Center, upon review of the medical evidence of record, determined the Veteran "clearly has obstructive sleep apnea, which appears to have been worsening in 2009... Sleep apnea is frequently present for years before it is diagnosed." Furthermore, Dr. Shamim-Uzzaman concluded: This [Veteran] was definitely diagnosed with [obstructive sleep apnea] [twenty three] years after separation. While in the service, this [Veteran's] risk factors for [obstructive sleep apnea] included male gender, overweight body habitus, African American ethnicity, recurrent nasal obstruction, cigarette smoking, and alcohol consumption. Documented symptoms (that are in keeping with sleep apnea) include recurrent reflux, diaphoresis, headaches, sore throat, lethargy (in spite of adequate sleep duration) and possible excessive daytime sleepiness. As noted on his retirement evaluation, he developed mood changes during his service, trouble sleeping, frequent indigestion, and "throat trouble." There is also a comment on high blood pressure and thyroid disease and the patient did have hypertension, atrial fibrillation, and diabetes recorded after separation from the service. Based on these positive findings, it is at least as likely as not that the [Veteran's] sleep apnea had its onset during his military service, although a causal relationship between the two cannot be made. Regarding the question of whether the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD, Dr. Shamim-Uzzaman determined it was "unlikely that the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD." After a careful review of the Veteran's claims file and by granting the Veteran the benefit of the doubt the Board finds that the Veteran's sleep apnea is related to his military service. The Board finds that despite the negative etiological opinion from the April 2010 VA examination, the Board cannot ignore Dr. Shamim-Uzzaman's opinion that the Veteran's sleep apnea is related to his military service. The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board acknowledges that the Veteran's theory of entitlement this appeal is based secondary to his service-connected PTSD. The Veteran has provided lay statements and Dr. H. J. has provided a positive nexus opinion. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Board, however, finds that the Dr. Shamim-Uzzaman's opinion is more probative as it is the most thorough and factually supported opinion of record, given that they are consistent with other evidence of record and included review of the claims file. This medical evidence is competent, credible and persuasive, as it is based on accurate facts and supported by a rationale based on medical principle. Id. Therefore, although the Board is granting the Veteran's appeal on a direct basis, rather than secondary as the Veteran has claimed, he is not prejudiced. In view of the totality of the evidence, including the Veteran's documented in-service sleep apnea, current findings of sleep apnea, and the positive nexus opinion of record, the Board finds that sleep apnea is causally related to the Veteran's active service. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for sleep apnea is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs