Citation Nr: 1326953 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 06-21 222 ) 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 a service connected disability. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from June 1985 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the instant matter was most recently before the Board in June February 2013, at which time it was remanded for further development. Upon completion of the requested development, the agency of original jurisdiction readjudicated the Veteran's service connection claim via an April 2013 supplemental statement of the case and denied that claim on the merits. As will be discussed in further detail below, the Board is satisfied that the terms of its prior remand have been complied with; thus, it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's currently diagnosed sleep apnea has not been shown to be related to his military service, nor is it caused or aggravated by a service-connected disability. CONCLUSION OF LAW The Veteran does not have sleep apnea that is the result of disease or injury incurred in or aggravated during active military service, and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Upon receiving the Veteran's claim of service connection for sleep apnea, the RO sent to him a letter dated in May 2008 wherein he was notified of the evidence required to substantiate that claim. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the May 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim of service connection on a direct basis. Notably, however, the Veteran was not provided with notice of how to substantiate his claim on a secondary basis. However, it is the claimant who has the burden of demonstrating that a notice error occurred and that the notice error was prejudicial to the claim. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). In the instant case, neither the Veteran nor his representative has raised an issue with regard to the adequacy of notice provided in this case. Further, the Board's previous remand included development specific to the issue of secondary service connection. Given the facts of this case, the Board finds that although the Veteran was not specifically informed of how to substantiate his claim of service connection on a secondary basis, the Veteran did have a meaningful opportunity to participate in the development of his claim. Accordingly, the Board finds that the Veteran has not been prejudiced by notice error in this case. See Overton v. Nicholson, 20 Vet. App. 427, 235 (2006) (notice errors that render a claimant without a "meaningful opportunity to participate effectively in the processing of his or her claim" are prejudicial). Thus, the Board is satisfied that the duty to notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were met. Regarding the duty to assist, the Board is satisfied that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), VA treatment records, private treatment records, a VA examination and opinion report, and lay statements from the Veteran and his wife. The matter has also been remanded and the Veteran was given the opportunity to present additional evidence in support of his claim. Neither the Veteran nor his representative has suggested that further assistance is necessary or that there exists outstanding relevant evidence. Further, in compliance with the terms of the Board's June 2012 and February 2013 remands, the Veteran was afforded a VA examination in connection with his claim for service connection for sleep apnea and an addendum opinion was obtained. A review of the examination report reveals that the examiner reviewed the claims folder and considered the lay contentions of the Veteran and before discussing the likelihood that the Veteran's sleep apnea was related to service or to a service-connected disability. In an April 2013 addendum opinion, the VA clinician specifically considered the statement supplied by the Veteran's wife regarding her observation of the Veteran's symptoms. The Board is satisfied that the examination and opinion reports contains sufficient evidence by which to evaluate the Veteran's claim for service connection and that the requested opinions are adequate as they were predicated on a reading of the medical records in the Veteran's claims file and based on the VA examiner's assessment of the evidence as a medical professional. The Board notes that while the opinion regarding secondary service connection is lacking somewhat in supporting rationale, as will be discussed in greater detail below, the Board does not find that the lack of a more detailed rationale renders the opinions inadequate. The Board thus concludes the Veteran was provided with an adequate medical examination and opinion and that the evidence developed on remand also complies with the terms of the Board's prior remands. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (describing adequacy of medical examinations); Stegall, supra. II. Analysis The law provides that service connection may be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West. 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2012). A review of the Veteran's STRs fails to reveal a diagnosis of sleep apnea or complaints related to sleep disturbances. The Veteran indicated ear, nose, and throat, but that was related to his sinusitis. A sleep study was performed in February 2008, the results of which revealed that the Veteran was suffering from severe obstructive sleep apnea with significant desaturations. The Veteran was treated with a continuous positive airway pressure (CPAP) device. In May 2008, the Veteran filed his claim for VA disability compensation, seeking service connection for sleep apnea, which he indicated began in 1990 or 1991. In support of his claim, the Veteran submitted a statement from his wife who reported that about a year after the Veteran returned from overseas service in support of Operation Desert Storm, she began to notice that he snored loudly and at times would stop breathing in his sleep. The Veteran was afforded a VA examination in connection with his claim in July 2012. It was noted that he had been diagnosed as having sleep apnea in 2008, which the Veteran attributed to service. The examiner acknowledged the Veteran's assertion that since he got married in 1991, his wife had told him that he stopped breathing in his sleep. The Veteran denied seeking medical treatment related to his symptoms prior to 2008, at which time his brother was diagnosed as having sleep apnea. Upon review of the evidence of record and examination of the Veteran, the VA examiner opined that it was less likely than not that the Veteran's sleep apnea began during service, was causally related to service, or was caused or aggravated by his service-connected sinus disability. As rationale for her opinion, the examiner noted the lack of sleep related complaints or seeking of treatment until more than 10 years after service. The examiner further stated that the risk of developing sleep apnea increases with weight gain and age, noting that the Veteran had increasingly gained weight since service and was considered obese, as evidenced by a body mass index (BMI) of 39.7. The examiner explained also that loss of muscle tone due to the aging process allows for the windpipe to collapse during breathing when muscles relax during sleep. She went on to state that medical literature establishes that obesity is a definitive risk factor for sleep apnea and that potential risk factors include smoking, genetics, nasal congestion, diabetes, alcohol use, and being male. It was noted that the Veteran had a long history of smoking and that alcohol dependence was listed at the time of his separation from service. The examiner further opined against an association between the Veteran's sleep apnea and his sinusitis, noting that the objective evidence of record failed to support that the Veteran's sinusitis had caused or aggravated his sleep apnea. An additional review of the evidence was undertaken in April 2013 and the VA examiner provided an addendum opinion, with which a second VA clinician concurred. Specifically, the examiner noted the lay statements offered by the Veteran and his wife, but found that while the Veteran and his wife are credible historians, the fact remains that 30 to 50 percent of the population snore at one time or another and snoring does not definitively prove sleep apnea. The VA examiner went on to discuss the effects of alcohol consumption on one's sleep patterns and again noted the Veteran's weight gain since service, as well as his history of smoking and the fact that he still smoked, both of which were risk factors for the development of sleep apnea. In that regard, the examiner noted that people who smoke are three times more likely to develop sleep apnea than are people who have never smoked. In consideration of the above, the Board finds that the preponderance of the evidence is against a finding of service connection for sleep apnea. This is so because the probative evidence of record does not support a finding that the Veteran's sleep apnea is attributable to service, nor is there any evidence to suggest that the Veteran's sleep apnea was caused or aggravated by his sinus disability. Notably, despite the lay assertions that the Veteran has had sleep-related symptoms since 1991, the VA examiner considered such lay assertions but still determined that the Veteran's sleep apnea was less likely than not related to service. The examiner relied on a number of factors, to include the Veteran's age, weight, history of smoking, and use of alcohol, in addition to the fact that he did not seek treatment for his sleep apnea until more than 10 years after service, in opining against an etiological relationship between the Veteran's sleep apnea and service. The examiner further explained why the Veteran's reported snoring could not be considered definitive proof of sleep apnea. As to the examiner's negative opinion regarding whether the Veteran's sinus disability has caused or aggravated his sleep apnea, the Board notes that although that opinion is lacking somewhat in rationale, there are no reasons or bases requirements imposed on a medical examiner, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Rather, an examiner is required only to consider all of the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. Stefl, supra. In the instant case, there is no indication that the VA examiner failed to consider any piece of relevant evidence before providing her opinion. The Board also finds no reason to discount the medical opinion based on the clinician's expertise and qualifications as a medical professional. Further, given the absence of contrary medical evidence in this case, the Board need not weigh the VA examiner's opinion against other evidence. Indeed, there is no evidence to suggest that the Veteran's sleep apnea has been caused or aggravated by his service-connected sinus disability. As such, the Board finds that the lack of a more detailed rationale does not render either of the opinions obtained in this case inadequate. In sum, the Board finds that there is no basis to establish service connection for a sleep apnea. In this regard, the Board finds probative the VA examiner's July 2012 and April 2013 opinion reports. It is clear that the examiner considered a variety of factors in concluding that the Veteran's currently diagnosed sleep apnea is not related to a period of active military service or to a service-connected disability. The Board finds that, in light of the lack of in-service complaints or treatment suggestive of sleep apnea, the post-service medical records first showing a diagnosis of sleep apnea in 2008, and the VA examiner's opinion negative nexus opinion, which takes into account his wife's lay statements regarding symptomatology, there is no basis to establish service connection for sleep apnea on a direct basis because a crucial element of service connection has not been shown. See Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability); see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). There is also no basis to establish service connection on a secondary basis as there is simply no evidence to support a finding of causation or aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998) (requiring nexus evidence establishing a connection between the service-connected disability and the current disability); Allen, supra. In finding that service connection for sleep apnea is not warranted, the Board is cognizant of the fact that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection.'" Barr, 21 Vet. App. at 307 (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). While certain symptoms of sleep apnea are certainly of an observable nature, the VA examiner has considered the lay evidence of such observable symptoms but stated why the lay reports are not conclusive evidence of sleep apnea. Further, the Board notes that generally etiology of dysfunctions and disorders is a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran's wife, as a lay person without the appropriate medical training and expertise, is not competent to diagnosis sleep apnea existent since service, especially in light of the Veteran's nonservice-related risk factors, as explained by the VA examiner. See Jandreau, supra; see also Savage v. Gober, 10 Vet. App. 488, 497 (1998) ("B]ecause it would not necessarily follow that there is a relationship between any present disability and the continuity of symptoms demonstrated, medical evidence . . . is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."). For the foregoing reasons, the Board finds that the claim of service connection for sleep apnea must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt. However, as the greater weight of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs