Citation Nr: 1325115 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-20 798A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1967, from March 1974 to July 1976, and from August 1976 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's case was previously remanded by the Board in November 2010 and April 2013. The November 2010 remand characterized the issue as entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). This was based on the Veteran's submissions at that time wherein he alleged his sleep apnea was due to his PTSD. The April 2013 remand observed that the Veteran had since further alleged that his sleep apnea could be due to his "service-connected" disabilities. Therefore, the remand recharacterized the secondary service connection aspect to reflect the later arguments raised by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDING OF FACT There has been no demonstration by competent medical evidence or by competent and credible lay evidence that the Veteran's sleep apnea is related to active duty, or that it was proximately caused or aggravated by service-connected disabilities. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by active service, and is not proximately due to, the result of, or aggravated by, service-connected disabilities. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice for direct and secondary service connection, and Dingess notice, was provided in a November 2010 letter. Accordingly, the duty to notify has been fulfilled. The claim was subsequently readjudicated in a February 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, records from the Social Security Administration (SSA), an April 2013 VA examination report and the Veteran's statements in support of his claim. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The Board also finds that VA has substantially complied with the Board's prior remands. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the April 2013 VA examination report is more than adequate, as it reflects a review of the Veteran's claims file, considers all of the pertinent evidence of record, and provides rationales for the opinions offered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. In this case, the Veteran had confirmed service in the country of Vietnam during the Vietnam War era and, therefore, is presumed to have been exposed to Agent Orange herbicides. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain disabilities shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). However, sleep apnea is not on the list of presumptive conditions associated with Agent Orange exposure. 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202 (Aug. 31, 2010). The Secretary of VA (Secretary) has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 75 Fed. Reg. 32540-32553, 32545-32546 (June 8, 2010). Notwithstanding the foregoing presumptive provisions, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). 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 medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that he incurred sleep apnea as a result of active duty exposure to herbicide in Vietnam, or that his service-connected disabilities caused or aggravated sleep apnea. The Veteran's service-connected disabilities consist of PTSD, arteriosclerotic heart disease, diabetes mellitus, peripheral neuropathy of both upper and lower extremities, pilonidal cyst, hemorrhoids, erectile dysfunction and hypertension. The Veteran's service treatment records are negative for pertinent complaints, symptoms, findings or diagnoses. The post-service medical records are negative for sleep apnea for many years after the Veteran's separation from service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). VA treatment records reflect treatment for sleep apnea. They are negative for any evidence linking the Veteran's sleep apnea to active duty exposure to herbicide, or showing that service-connected disabilities caused or aggravated the sleep apnea. SSA records are also negative for any evidence linking the Veteran's sleep apnea to active duty exposure to herbicide, or showing that service-connected disabilities caused or aggravated the sleep apnea. The claims file contains a VA examination report dated in May 2006, which was found inadequate by the November 2010 remand. It also contains a VA examination dated in December 2010, which was found inadequate by the April 2013 remand. The report of the April 2013 VA examination sets forth the relevant history, the Veteran's subjective complaints, and examination results. The examiner expressed the opinion that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event or illness. The examiner explained that sleep apnea was not an Agent Orange presumptive condition. There was no documentation in the Veteran's service treatment records surrounding a sleep apnea condition. The examiner also expressed the opinion that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition[s]. The examiner explained that there was no objective evidence in the current medical literature that supports that PTSD, arteriosclerotic heart disease, diabetes mellitus, peripheral neuropathy of both upper and lower extremities, pilonidal cyst, hemorrhoids or hypertension as causes of obstructive sleep apnea. The examiner noted that the Veteran had several risk factors for his obstructive sleep apnea which included being overweight, having a large neck, having high blood pressure (hypertension), having chronic nasal congestion, having diabetes, being male, being older and using sedatives or tranquilizers. The examiner stated that any opinion rendered regarding aggravation by each risk factor individually would be based on mere speculation as such information is not available in current medical literature. The Board is aware that in Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that it was inadequate for a VA examiner to simply conclude, without explanation, that the etiology of a disability could not be resolved without speculation. In this case, however, the examiner is in essence only stating that it would be speculative to say aggravation did occur, because there is no medical literature on which to base such an opinion. The Board finds that these medical opinions constitute probative evidence against the Veteran's claim. They are based on current examination results and a review of the medical record. The examiner explained the opinions with references to the Veteran's active duty and post-service medical history. This fact is particularly important, in the Board's judgment, as the references make for more convincing rationales. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). 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.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board acknowledges the Veteran's own assertions in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. The Board finds that his assertions are credible. However, the Veteran's contentions that his sleep apnea was caused by active duty exposure to herbicide, or was caused or aggravated by service-connected disabilities, do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran's sleep apnea was caused by active duty exposure to herbicide, or was caused or aggravated by service-connected disabilities) fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, 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. Further, 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. Jandreau, supra. The Veteran is competent to state that he observed the claimed symptoms of sleep apnea after active duty exposure to herbicide or the development of service-connected disabilities. However, he is not competent to attribute the coincidence of symptoms occurring after active duty exposure to herbicide, or after developing service-connected disabilities, as establishing the diagnosis and etiology of his current sleep apnea. As such, the Board finds that the Veteran's assertions are outweighed by the April 2013 VA medical opinion. The Board is also aware of the Veteran's contentions that his service-connected disabilities caused his obesity, which was considered a cause of his sleep apnea by a December 2010 VA examiner. However, there is no evidence that it is at least as likely as not that the Veteran's service-connected disabilities caused his obesity. Thus, secondary service connection on this basis is not warranted. 38 C.F.R. § 3.310. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for sleep apnea, to include as secondary to service-connected disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for sleep apnea, to include as secondary to service-connected disabilities, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs