Citation Nr: 1326163 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-01 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service connected hypertension, allergic rhinitis, sinusitis, and hay fever. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on two separate periods of active duty, the first period from June 1971 to September 1975, and the second period from May 1977 to February 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for chronic obstructive sleep apnea (OSA). The issue was previously remanded by the Board in October 2012 for additional development. The Board also notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. FINDING OF FACT Sleep apnea did not manifest during service, and any current diagnosis of sleep apnea is not attributable to service or to a service-connected disorder. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by military service, nor proximately due to a service-connected disorder. 38 U.S.C.A. § 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. March and August 2008 VCAA letters fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the letters described how appropriate disability ratings and effective dates were assigned. The claim was subsequently readjudicated in various supplemental statements of the case, most recently issued in February 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such re adjudication in the statement of the case). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available, relevant service treatment records and VA medical records are in the file. The Board concludes that all records identified by the Veteran as relating to the claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. Additionally, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided a VA examination in January 2013 for his disability claim. The examination report reflects that the examiner reviewed the claims file, conducted appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds the examination report to be thorough and complete. Therefore, the Board finds the examination report and opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection - Legal Criteria 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 claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran 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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background Service treatment records, including April 1971, December 1973, July 1975, March 1976, February 1981, September 1984, and July 1992 examination report fail to indicate any sleeping or sleep apnea complaints or treatment. In a July 1992 retirement report of medical history, the Veteran specifically denied frequent trouble sleeping. The Veteran had various complaints of hay fever and sinusitis. Post-service records indicate a diagnosis of very mild obstructive sleep apnea based on a sleep study conducted in December 2007. In a July 2008 VA progress note, the Veteran requested treatment using a continuous positive airway pressure (C-PAP). He reported his girlfriend stated that he snores loudly, although she has not noticed that he stopped breathing while he sleeps. In a June 2009 statement from the Veteran's treating physician, D. M., M.D, claimed that hypertension is often associated with sleep apnea. Often hypertension comes from the sleep apnea and is improved when the sleep apnea is treated. The physician noted that there is a possibility that the Veteran's hypertension is secondary to his sleep apnea. In a July 2009 letter, the Veteran asserted that as he was diagnosed with hypertension in service, and not given a sleep study at that time, he believes that he had sleep apnea in service. During a January 2013 VA examination, the Veteran reported a history of sleeping difficulties to the mid-1980s when he would wake up in the middle of the night for two to three hours. Since his retirement, he wakes up three to four times a night to go to the bathroom and he will have difficulty falling back asleep. He has had hypertension since 1991. He is service connected for allergic rhinitis, sinusitis, and hay fever. He is on no current medication for his sinus disorders. He reported that his sinus disability is better than it used to be and he has not used medication for years. He was placed on a C-PAP in 2008. He used it on a regular basis only for a few months and then only as needed. He last used his C-PAP two years ago. He takes no continuous medication for his sleep disorder. After review of the claims file, the examiner found that that Veteran's mild obstructive sleep apnea less likely than not has its onset in service. The Veteran's service medical records do not document a history of any sleep disturbance/daytime hyper somnolence complaints in service. His retirement examination report was negative for any sleep complaints. The examiner recognized the Veteran was diagnosed with essential hypertension in service. Per his medical research, the examiner found that hypertension does not cause sleep apnea and sleep apnea does not cause essential hypertension. His hypertension was noted in 1991, though his sleep apnea complaints were not until 2007. Even assuming the Veteran's history is reliable, the objective evidence for any symptoms in service are not demonstrated. His risk factors for sleep apnea as documented are age, race, and gender. The examiner also found that the Veteran's sleep apnea is less likely than not caused or aggravated by his service-connected allergic rhinitis, sinusitis, and hay fever. The Veteran reported his sinus symptoms have improved and he has not taken medication for this condition for two years. While nasal congestion documents a 2 fold increase in the prevalence of OSA there is no causal effect. Analysis The evidence reflects that the Veteran has a current diagnosis of obstructive sleep apnea. Having reviewed the complete record, however, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's current sleep apnea was incurred in or otherwise related to his military service or service-connected hypertension, allergic rhinitis, sinusitis, or hay fever. In that regard, the Board finds the January 2013 VA medical opinion to be of significant probative value. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The reviewer considered the Veteran's claims file, his contentions, the medical evidence of record, and conducted a complete physical examination, but concluded that the Veteran's obstructive sleep apnea was not caused by or related to his active duty service. Furthermore, a complete and thorough rationale was provided for the opinion rendered. Specifically, the examiner noted the absence of complaints of sleep-related problems in service, the fact that race, gender, and age were the Veteran's primary risk factors in developing sleep apnea, and that the Veteran was not diagnosed with sleep apnea until 2007 (or almost 14 years after separation from service). The examiner's conclusion was fully explained and consistent with the credible evidence of record. The Board has considered the Veteran's contentions that his hypertension in service was an indicator of sleep apnea which incurred in service, or, in the alternative, that his service-connected allergic rhinitis, sinusitis, and hay fever has either caused or aggravated his sleep apnea. With respect to the June 2009 VA medical opinion, which suggested that there is a possibility that the hypertension is secondary to sleep apnea, the Board notes that this opinion is couched solely in terms of possibility and not probability. Indeed, little, if any, weight of probative value is placed on opinions that are purely speculative in nature. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board also considered the internet article submitted by the Veteran which stated that "potential consequences of obstructive sleep apnea are significant and include hypertension..." Here, however, the Board finds the article submitted by the Veteran to be far too general, and of significantly less probative value than the January 2013 VA medical opinion discussed herein, which considered the specific nature of the Veteran's claimed sleep symptoms in relation to accepted medical principles. In essence, the Board finds this article to be of very little probative value on the questions of whether the Veteran's sleep apnea is related to service or whether his in-service hypertension could only have been caused by concurrent sleep apnea. On the other hand, the Board finds the January 2013 VA examiner's opinion to be of significant probative value that neither the direct nor secondary theory of entitlement is persuasive to support a claim for service connection. As stated previously, the January 2013 VA examiner's opinion was definitive, based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. Furthermore, the examiner's conclusion was fully explained and consistent with the credible evidence of record. The Veteran and his representative have been accorded ample opportunity to present competent medical evidence in support of his claim; they have failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is the claimant's responsibility to support a claim for VA benefits). The Board also acknowledges the Veteran's own assertions that his current obstructive sleep apnea was caused by his military service or service-connected disorders. Certainly, the Veteran can attest to factual matters of which he has first-hand knowledge, such as subjective complaints of snoring, awaking at night, and other observable sleep problems, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not competent to render an opinion as to the cause or etiology of any current disability because he does not have the requisite medical knowledge or training to provide an opinion on such a complex medical issue. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Thus, the Board ultimately places far more probative weight on the opinion of the January 2013 VA examiner, a medical professional, who considered the Veteran's lay reports as to his sleep problems. Additionally, the examiner based his opinion on reports of a thorough physical and mental health examinations, reviewed the service treatment records, post-service medical records, and the results of diagnostic tests, and relied on medical principles in reaching his conclusion that it was less likely than not that the current obstructive sleep apnea was caused by or related to the Veteran's service or service-connected sinus disabilities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). The Board finds that any contention as to a nexus to service problematic given that the Veteran has not explicitly claimed a continuity of sleep apnea from service. He has simply implied that sleep apnea may have existed because he had hypertension in service. However, the Board notes that the Veteran denied any trouble sleeping on separation from service. Furthermore, in the July 2008 VA progress note, the Veteran's girlfriend told him that he snored, but did not stop breathing. In sum, the preponderance of the evidence is against the Veteran's claim for service connection. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for sleep apnea, to include as secondary to service connected hypertension, allergic rhinitis, sinusitis, and hay fever, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs