Citation Nr: 1326164 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-19 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for sleep apnea, including secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from July 1965 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in November 2012, at which time the Board reopened and remanded the claim for service connection for sleep apnea, including as secondary to service-connected PTSD for additional development to the Appeals Management Center (AMC). FINDING OF FACT The Veteran's sleep apnea is not shown during his military service nor is there competent medical evidence linking his sleep apnea to his military service or to service connected disability. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by active military service nor is it proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). This VCAA duty to notify initially was satisfied by way of pre-adjudicatory letters the RO sent to the Veteran in January 2010, which at that time addressed the issue of whether new and material had been submitted to reopen this previously denied claim of entitlement to service connection for a low back disorder. See Kent v. Nicholson, 20 Vet. App. 1 (2006), and VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006), discussing the type of notice required when there is a petition to reopen a claim that has been previously considered and denied and the decision since has become final and binding based on the evidence then of record. And after the RO and then the Board reopened the claim, an additional notice letter was sent in January 2010, and the claim was readjudicated in statements of the case (SSOC)'s that followed, as recently as April 2013. So the Veteran has received all required notice concerning his claim, and it has been reconsidered since providing all required notice. As mentioned VA also has a duty to assist the Veteran in the development of this claim. This duty includes assisting him in the procurement of his service treatment records (STRs) and pertinent post-service treatment records (VA and private). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Regarding the duty to assist in providing a medical opinion or examination, it is noted that in a June 2013 informal hearing presentation, the Veteran's representative asserts that a January 2013 VA medical opinion, requested subsequent to the November 2012 Board remand, is inadequate since it did not address the relationship between the Veteran's sleep apnea and his service-connected PTSD on a secondary service connection basis. 38 C.F.R. § 3.310 (2012). Admittedly the examiner in his January 2013 opinion did not address secondary service connection. However, the Board did not request such an opinion as there is other evidence on file which sufficiently addressed this matter. It is acknowledged that the 2013 examiner indicated that to render an etiological connection to service would be speculative. This opinion was rendered based on a thorough review of all relevant information as will be discussed below. There is no indication that a more complete opinion could be rendered given that the examiner had access to all pertinent information. In sum, appropriate VA medical examinations and opinions have been requested and procured addressing the etiology and causal connection between the Veteran's sleep apnea and his military service and service-connected PTSD. The Board's prior remand directives have been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The Board finds that all necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service connection The Veteran asserts that he developed sleep apnea in military service, or in the alternative that his service-connected PTSD caused or contributed to the onset of sleep apnea. Service connection may be granted if it is shown he suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during his service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service occurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder also may be service-connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally, lay persons can provide an eye-witness account of a Veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). III. Factual Background Review of the Veteran's STR's show that they are entirely absent for any complaints, findings, or diagnoses referable to a sleep disorder, including sleep apnea. A VA compensation examination performed in April 1977 is absent for complaints or finding referable to a sleep disorder or sleep apnea. Private medical records from September 2004 show that the Veteran complained of excessive daytime sleepiness, shortness of breath while sleeping and witnessed apneic episodes. A sleep study was performed resulting in a diagnosis of obstructive sleep apnea. He was treated with a BiPAP device by April 2005. In a January 2010 statement from a private physician, it was reported that the Veteran had the condition of obstructive sleep apnea that was diagnosed in 2004, and he took medication to remain alert during the day. The Veteran underwent a VA Compensation and Pension examination in February 2010. It was reported that the Veteran's claims folder was reviewed. It was mentioned that 5 years ago, the Veteran underwent a polysomnogram for symptoms of daytime hypersomnolence. Sleep studies revealed obstructive sleep apnea. The VA examiner expressed the opinion that the Veteran's sleep apnea was less likely as not caused by, a result of, or aggravated by service-connected PTSD. The rationale stated was that obstructive sleep apnea is due to upper airway resistance, which ultimately leads to decreased oxygen levels causing arousal and diminishing effective and restorative sleep. It was stated that medical evidence did not support that PTSD, such as diagnosed in the Veteran, in any way increased upper airway resistance, thus leading to obstructive sleep apnea. In March 2010 former coworker indicated that she had known the Veteran since he was discharged from the Army, and that during that period until presently the Veteran had always had the condition of sleep apnea. The Veteran had related early on that he began having these issues while on constant guard in Vietnam and later as a Criminal Investigation Division (CID) Special Agent. In an April 2010 statement from the previously reported private physician, it was stated that the Veteran had observed daytime sleepiness related to PTSD since his Vietnam tour. It was reported that he was diagnosed with obstructive sleep apnea in September 2004, as well as periodic limb movement disorder which also causes daytime sleepiness. In another April 2010 statement the physician stated that "if [the Veteran's] sleep disorder is not adequately treated it could exacerbate his PTSD." Yet another statement from the physician (encapsulated in a contemporaneous treatment records) indicates that "I am not aware of a direct connection between obstructive sleep apnea and PTSD. There are similar symptoms between [the two conditions] such as daytime sleepiness." In an April 2010 statement encapsulated in a private treatment record the same physician stated: "I am not aware of a direct connection between obstructive sleep apnea and PTSD. There are similar symptoms such as daytime sleepiness between PTSD and OSA diagnosed in October 2004." In a January 2013 VA medical examination and opinion, a physician reported that the Veteran's claims folder had been reviewed. The examiner reported that he had considered the Veteran's documented medical history and lay assertions regarding his in-service symptoms, and the description of his symptomatology from his time in service until presently. It was stated that the Veteran remembered some daytime sleepiness. He had reported while on alert status in the military, he had difficulty sleeping due to stress, and since he had poor nighttime sleeping, he had increased daytime sleepiness and fatigue. After military service when he worked for the U. S. Postal Service, he was often on call and waiting to be called interfered with his sleep and resulted in daytime sleepiness. It was reported that the Veteran did not describe a history of or symptoms of snoring, unrestful sleep when he did sleep, or being told that he stopped breathing while sleeping. The examiner opined that based on consideration of both the documented history, the Veteran's lay assertions, and the description of the symptomatology from the time of military service until the present, it would require resorting to mere speculation to render an opinion whether or not the Veteran's obstructive sleep apnea is due to, a result of, or related to his military service. The examiner indicated he considered the Veteran's descriptions of symptoms of daytime sleepiness that had an onset in the military service and to some extent have been present since his time in the military. It was opined that daytime sleepiness is not specific or unique to obstructive sleep apnea, and likely is multifactorial in nature. The examiner reiterated that the Veteran was not describing any other symptomatology that would be related to his current diagnosis of sleep apnea. In also reiterating that an opinion would require speculation, the VA physician reasoned that one cannot simply go back in time and do objective testing such as a polysomnogram to confirm a diagnosis of underlying sleep apnea. Analysis The Board has carefully reviewed the entire evidentiary data and concludes that service connection for sleep apnea is not available on either a direct or secondary basis. It must first be pointed out that private records from late 2004, and VA records, confirm that the Veteran has obstructive sleep apnea. As a result the Veteran's claim meets the threshold requirement for showing entitlement to service connection, regardless of the specific basis alleged (direct, presumptive or secondary). So the Veteran has established that he has the claimed disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, and that, without this threshold minimum level of proof, there can be no valid claim because there is no disability to attribute to his military service). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as to any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Veteran's STR's are negative for any complaints, findings, or diagnoses referable to sleep apnea or any sleep disorder for that matter. As mentioned before, the first evidence of the Veteran's sleep apnea are shown in September 2004 medical records. This diagnosis of sleep apnea is approximately 28 years after the Veteran's military service. It is imperative to note that the Board may consider the absence of any indication of a relevant medical complaint, like here, well after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In a January 2013 VA medical opinion a VA physician who reviewed the claims file, stated that it would require resorting to mere speculation to render an opinion whether or not the Veteran's obstructive sleep apnea is due to, a result of or related to his military service. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court noted that there were cases in which it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. In the instant case, it must be pointed out that in the January 2013 VA medical opinion, there are no significant inconsistencies or ambiguities, and no evidence putting into question the competency of the examiner or the adequacy of his findings. It appears that all relevant information, to include the Veteran's own statements, was fully considered by the examiner. It was noted in the report that the Veteran did not describe a history of or symptoms of snoring, unrestful sleep when he did sleep, or being told that he stopped breathing while sleeping, symptoms of sleep apnea. The examiner indicated that the Veteran had described daytime sleepiness, but it was not necessarily unique to obstructive sleep apnea. It was concluded that a definitive opinion could not be provided. The Board notes that there is no competent evidence in support of the Veteran's assertion that his sleep apnea is related to his military service. In the absence of STR's that show sleep apnea during service, diagnoses or complaints until many years after service, as well as a lack of supporting nexus evidence, the Board concludes that service connection for sleep apnea on a direct basis is not available here. Regarding service connection for sleep apnea secondary to the service connected PTSD, the record includes an April 2010 statement from a private physician indicating that the Veteran had daytime sleepiness related to PTSD since service. Sleep impairment is contemplated as a symptom of the service-connected PTSD. See 38 C.F.R. § 4.130. The examiner did not indicate that the Veteran had sleep apnea related to PTSD. It is also noted that the causes of sleepiness have been recognized as multifactorial and are not unique to sleep apnea. Further, sleepiness, alone, is not recognized as a disability but is a symptom. Also, contrary to the assertion of a causal connection between the Veteran's service-connected PTSD and his sleep apnea, in an April 2010 private clinical entry the same private physician stated that he was unaware of a direct connection between obstructive sleep apnea and PTSD. Further weighing against the claim is the February 2010 medical opinion where a VA examiner opined that the Veteran's sleep apnea was less likely as not caused by, a result of, or aggravated by service-connected PTSD. It was stated that medical evidence did not support the position that PTSD, such as that diagnosed in the Veteran, in any way increased upper airway resistance, thus leading to obstructive sleep apnea. The totality of these findings must be accorded substantial probative value, and so the Board must also conclude that service connection on a secondary basis is also not available. The Board has considered the Veteran's testimony as well as the lay evidence that has been submitted in support of his claim. That lay evidence includes a statement from a former co-worker regarding the Veteran's sleep apnea. The Board notes that the Veteran is competent to attest to the fact that he has had symptoms associated with sleep apnea. As noted by the Court, 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. See Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. With regard to the Veteran's own assertion as to the diagnosis and etiology of his sleep problems, the Board does not find that he or his former co-worker for that matter, are competent to render a diagnosis of sleep apnea. While the Veteran and his former co-worker are certainly competent to report observable symptoms, such as the Veteran's sleepiness, they have not been shown to be competent to identify a specific diagnosis based solely on observation. Further, neither the Veteran nor his co-worker have demonstrated the medical knowledge required to establish a diagnosis. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Veteran and his former co-worker also lack the medical expertise necessary to determine the probability of a causal relationship between one disability and another which requires specialized training for a determination as to diagnosis and causation. Only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder as related to another disorder. Therefore, with consideration of all of the above, the Board notes that the evidence fails to demonstrate that the Veteran has sleep apnea that is related to his military service or to his service-connected PTSD. The Board finds that the Veteran's claim for service connection for sleep apnea, including secondary to service-connected PTSD must be denied. The Board has considered the benefit of the doubt rule; however, as a preponderance of the evidence is against this claim such rule does not apply and the claim must be denied. 38 U.S.C.A. §5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for sleep apnea, including as secondary to service-connected PTSD is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs