Citation Nr: 1324880 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-36 842 ) 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: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to June 1999, and from October 2004 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2013, the Veteran testified at a Board hearing before the undersigned. FINDING OF FACT OSA is attributable to service. CONCLUSION OF LAW OSA was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to the VCAA are harmless and nonprejudicial. 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, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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 Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, 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 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, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). The Veteran is competent to report the Veteran can observe and feel through the senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims ("the Court") similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. A review of the service treatment records (STRs) reveals that the Veteran served for approximately 15 years during his first period of service, and for about three years during his second period of service. The record reflects that he gained a considerable amount of weight during each service period. The Veteran contends that this weight gain resulted in problems with his sleep. He maintains that he began snoring excessively and developed sleep apnea. In addition, he asserts that his service-connected PTSD also contributed to his sleep problems. The Veteran has submitted lay statements from service buddies and his spouse also testified on his behalf. In sum, they related that they observed the Veteran snoring loudly with periods where he paused breathing/stopped breathing during his sleep. Their statements substantiate the Veteran's contentions. Further, the Veteran also submitted internet treatise evidence which generally provides information about OSA. In particular, it shows that the risk factors include excess weight, neck circumference, being male, being older, family history, race, and nasal congestion. The Veteran points to excess weight, neck circumference, race, and nasal congestion as all being inservice risk factors for him. Another article addressed PTSD and its connection to OSA. A review of the post-service medical records shows that on a January 2008 VA examination, the Veteran reported that he stopped breathing at night. Subsequent 2008 outpatient records reflect a diagnosis of OSA by sleep study and that the Veteran was issued a CPAP machine for this diagnosis. The Veteran has furnished a medical report and opinion from Dr. A.G. dated in June 2013 who cited to pertinent inservice and post-service medical findings, including those concerning the Veteran's weight gain of 78 pounds during service as well as the dramatic increase in his Body Mass Index (BMI) to 36.0. The post-service 2008 diagnosis was reviewed as well as the CPAP prescription. The physician also referenced the lay evidence observations of the Veteran's spouse and service buddies. The physician explained that OSA is a disorder in which breathing repeatedly stops for 10 seconds or more during sleep which results in decreased oxygen in the blood and can briefly awake sleepers. She noted that there were various causes, with the most common being excess weight and obesity, combined with anatomical features and other contributing factors. Although there can be many factors, she indicated that more than half the people with OSA are either overweight or obese and have a BMI of 25-29.9 or 30.0 or above. The physician concluded that the medical evidence of record revealed that the Veteran suffered with symptoms consistent with sleep apnea during service, as observed by his wife and fellow officers. She noted that there was also medical evidence to show a significant increase of weight during service and a BMI which increased from 24.1 (normal) to 36.0 (obese). The Veteran was noted to have a weight gain of 49 percent. As his weight increased, she indicated that his symptoms became progressively worse. She concluded that it was more likely than not that the Veteran developed sleep apnea during service and his increasing weight during service was a major contributory factor. In this case, the Veteran is fully competent to attest to his problems with sleep. Likewise, his spouse and service buddies are competent to report that they observed the Veteran snoring and stopping breathing while he slept. Layno; 38 C.F.R. § 3.159(a)(2). The Board also finds that all of these individuals are credible in their reports, as supported by the private medical opinion. See Davidson; Jandreau. With regard to the private opinion of Dr. A.G., 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. See 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; 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."). In this case, the private physician was aware of the Veteran's medical history and cited to both inservice and post-service medical evidence as well as lay evidence, provided a fully articulated opinion, and also furnished a reasoned analysis. She fully explained the nature of OSA, the risk factors, and why the Veteran's OSA was etiologically related to service. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Dr. G.'s opinion is not contradicted by any other medical opinion of record and is supported by the lay evidence as well as the treatise evidence. The Board finds that this totality of evidence is persuasive and probative of the issue on appeal and service connection for OSA is warranted. ORDER Service connection for OSA is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs