Citation Nr: 1321918 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 09-14 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to April 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, denied entitlement to service connection for sleep apnea. In April 2013, the Veteran submitted a claim for a TDIU, an April 2001 letter from Dr. T., and a Social Security Administration (SSA) record (showing receipt of SSA disability benefits). The Veteran did not submit a waiver, but the SSA records and letter from Dr. T. were already in the file and previously considered; no waiver solicitation is needed. Cf. 38 C.F.R. § 20.1304 (2012). The issue of entitlement to a total disability rating for individual unemployability (TDIU) has been raised by a February 2013 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Obstructive sleep apnea is not related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in December 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. 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 finds the April 2012 VA examination report to be factually accurate and fully articulate on the issue. The RO even sought an opinion from the Veteran's private physician (see May 2011 letter). The statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In February and November 2012, the Board remanded this claim for several reasons. In accordance with the remand instructions, the Veteran submitted private records; comprehensive VA medical opinions were rendered; and SSA records have been received. In April 2013, this case was remanded to afford the Veteran's representative an opportunity to review the claims folder and provide evidence and argument on the Veteran's behalf. A May 2013 VA Form 646 was submitted and signed by the representative, evidencing that the representative had the opportunity to review the claims folder and submit argument. The Board finds that there has been substantial compliance with the remands. See Stegall v. West, 11 Vet. App. 268 (1998). 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. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); sleep apnea is not a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology does not apply here. Due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by such veteran's service record, the official history of each organization in which a veteran served, a veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a)(1) (West 2002). The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 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; in determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 (West 2002). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson 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 layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (a medical opinion was not required to prove a nexus between a service-connected mental disorder and drowning which caused death). Lay evidence may be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Charles v. Principi, 16 Vet. App. 370 (2002). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, as noted previously, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. at 511-512. Here, Dr. Y.C. provided a December 2002 letter in which she noted a diagnosis of OSA after a sleep study. She repeated this diagnosis following an examination in April 2008. This evidence serves to establish a current disease. The Board also finds competent lay evidence of symptoms regarding potential symptoms of OSA in service. This evidence is sufficient to establish an in-service disease or injury. The remaining question is whether the evidence establishes a link between the current OSA and the reported symptoms in service. Shedden, 381 F.3d at 1167. The April 1973 report of medical history completed by the Veteran at the time of his separation from service shows he checked yes and no regarding whether he had ever had frequent trouble sleeping. He also checked that he had nervous trouble and shortness of breath. The physician's summary noted he was slightly nervous and had shortness of breath with running and exertion. In his August 2008 notice of disagreement the Veteran asserted he had sleep problems at separation from service. At the July 2010 VA examination, the Veteran stated he had shortness of breath while in service; it occurred while he was asleep and awake. He would have to be awakened at night due to periods of shortness of breath. He could not remember any other symptoms. At the April 2012 VA examination, the Veteran was interviewed and reported having anxiety reactions in service (during which he breathed heavily but was not short of breath) and not being able to sleep at night. He was not prescribed any medications for this problem. He had no symptoms of snoring at night, no day time sleepiness, or tiredness during military service. The Board finds the Veteran's statement at separation regarding frequent trouble sleeping, is credible, but as explained by the VA examiner, insufficient to show the presence of OSA. The Veteran is competent to report symptoms, such as day time sleepiness or fatigue. See 38 C.F.R. § 3.159. Here, the evidence shows the Veteran remembered shortness of breath and insomnia but no symptoms of snoring at night, day time sleepiness, or tiredness during service. Such a statement has been consistent. Caluza, 7 Vet. App. at 511-512. The Board assigns it some weight although, as explained by the April 2012 VA examiner, a clinical diagnosis of a sleep apnea requires expertise and a sleep study. In addition to the report of medical history detailed above, the April 1973 report of medical examination shows a clinical evaluation was normal; findings included only a rash, shortness of breath with exertion, and that the Veteran was slightly nervous. Post-service a June 2000 record from Dr. T. shows that the Veteran complained of problems with sleep. His snoring was worse and it took awhile to drift off. In November 2001, SSA found the Veteran to be disabled with a primary diagnosis of osteoarthritis, secondary to a cerebrovascular accident. In December 2002, Dr. Y.C. wrote a letter, stating he had severe OSA; he needed to lose weight. Other records from this point in time onward also showed this diagnosis. In July 2010, the Veteran received a VA examination but the opinion was inconclusive. It was noted that the Veteran reported trouble sleeping at separation and that he had nervous trouble with a diagnosis of immaturity reaction. He saw a provider for chest pain in 1996. He was referred for a sleep study in 2002. The examiner noted the Veteran's weight was 174 at separation in 1973. He was seen for chest pain in service related to anxiety. The 2002 sleep study results were noted. The examiner noted the Veteran had a diagnosis of anxiety reaction with hyperventilation, but stated that it would be speculating to determine if the Veteran had OSA in service; there was not enough evidence to support the claim that the diagnosis of sleep apnea was related to his report of trouble sleeping in service. In September 2010, Dr. Y.C. wrote a letter stating the Veteran was diagnosed with OSA in 2002 and that untreated OSA can increase risk of stroke and heart conditions. Since he had a stroke in 1996, OSA may have pre-dated the onset of stroke. Dr. Y.C. noted the reported sleep description and shortness of breath. It was possible that OSA was present at the time. In May 2011, the RO wrote a letter to Dr. Y.C., requesting an opinion as to whether it was at least as likely as not that the sleep apnea was present in service. The same month, Dr. Y.C. responded, but did not answer the question. She restated that the Veteran was diagnosed as having OSA in 2002 and that OSA could increase the risk of stroke. He had a stroke in 1996. A review of military examination showed the Veteran reported sleep disruption and shortness of breath. Dr. Y.C. would only say that such symptoms suggested that he possibly had a sleep apnea at that time. In July 2011, the RO requested that the VA examiner review Dr. Y.C.'s statement and provide an opinion. The examiner stated that OSA was less likely as not related to the Veteran's complaints of trouble sleeping in service. The opinion noted the Veteran checked both yes and no boxes regarding frequent trouble sleeping at separation. Although he complained of shortness of breath, the clinician stated that there were no physical abnormalities regarding this issue and that onset was with running and exertion. Other service treatment records were also noted, as well as the May 2011 statement by Dr. Y.C. The examiner pointed out that the Veteran had other comorbid conditions that are risk factors for stroke, like diabetes mellitus, hyperlipidemia and hypertension. Hypertension began in the 1980s (per the July 2010 VA examination). The examiner saw no continuity of care regarding sleep issues between separation in 1973 and 2002. She reported the Veteran's weight in May 1971 was 174 pounds (actually 172); and in 2002 it was 243, indicating morbid obesity and that morbid obesity was a risk factor for obstructive sleep apnea. The Board requested another opinion to consider the Veteran's compliant of shortness of breath in service. In April 2012, the Veteran was again interviewed and he reported having anxiety reactions in service and he could not sleep at night due to anxiety reaction. He was not prescribed any medications for this problem. The Veteran said he was breathing heavily but did not have shortness of breath during anxiety attacks. He had no symptoms of snoring at night, no day time sleepiness, or tiredness during military service. While in service he was not diagnosed or treated for sleep apnea. After service, in 2002, the Veteran's wife told him he stopped breathing intermittently at night. He eventually had a sleep study done and received a diagnosis. The claims file and medical records were reviewed. Again, a negative opinion was provided. The examiner stated that sleep apnea was not diagnosed by "history or speculation alone" but by a sleep study. Dr. Y.C. made a speculative statement regarding sleep apnea based on history of sleep disturbance and shortness of breath. There was a 29-year gap between the diagnosis and separation. The Veteran was not treated for sleep apnea in service. Based on this evidence, the examiner opined OSA was less likely than not (less than a fifty percent probability) related to service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board finds the April 2012 VA examination report considered an accurate medical history and the pertinent lay evidence; it provided a definitive opinion and included sufficient reasoning for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304. The examiner evaluated and interviewed the Veteran as well as reviewed the claims file and noted all relevant evidence in coming to a conclusion. The examination report is on point in considering the issue at hand and the Board assigns it great evidentiary weight as the opinion is persuasive and finds support in the record. In contrast, Dr. Y.C.'s May 2011 opinion is far from definitive and did not consider or reflect relevant facts, such as when snoring was first noted by the Veteran's wife (after service), the lack of certain symptoms, such as stopped breathing, reported by the Veteran and that the Veteran attributed his lack of sleep at night to an anxiety reaction. As a result, the Board assigns the April 2012 VA examination report greater weight. In the August 2008 notice of disagreement, the Veteran cited Wagner v. Principi, 370 F.3d 1089, 1090 (Fed. Cir 2004) asserting that VA must use the clear and unmistakable evidence standard. That case refers to the presumption of soundness at the Veteran's entry into service. There is no question in this case as to whether OSA pre-existed service. It did not. Wagner has no relevancy to the question of whether the Veteran's current disease, first identified after service, is related to service. The weight of the evidence is against finding a link between current OSA and service. Because the weight of the evidence is against the claim, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for OSA is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs