Citation Nr: 1328779 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 08-06 649 ) 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 the service-connected panic disorder with agoraphobia (hereinafter "panic disorder"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to June 1998. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran presented testimony before the Board in February 2010. The transcript has been associated with the claims folder. In April 2010, the Board remanded the matter for further development and adjudication. In October 2011, the Board affirmed the denial of the claim for sleep apnea. The same decision also awarded service connection for panic disorder, which was implemented by the RO in a December 2011 rating decision. The Veteran appealed the denial of his claim for sleep apnea to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 Order, the Court vacated that part of the Board's decision denying entitlement to service connection for sleep apnea and remanded the matter to the Board for action consistent with the Joint Motion for Remand (JMR). In May 2013, the Board remanded the matter for further development and adjudication consistent with the Court's instruction and the JMR. Having been completed and returned to the Board, the matter is now ready for appellate disposition. FINDING OF FACT The competent and probative medical evidence of record preponderates against a finding that the Veteran's sleep apnea is due to events in active service or proximately due to, the result of, or aggravated by the service-connected panic disorder. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to the service-connected panic disorder, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in February 2007. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations. The Veteran had the opportunity to give testimony before the Board. The Board notes that the RO attempted to obtain records from the Naval Medical Center in Portsmouth and the National Personnel Records Center (NPRC) dated between 1990 and 1992. The RO was notified that no record of treatment was found by either the Naval Medical Center or the NPRC. See responses dated in May 2010 and August 2010. In January 2011, the RO notified the Veteran that records from the Naval Medical Center and the NPRC were unavailable and asked him to submit any in his possession, which he did not. The RO made a formal finding on the unavailability of records from Naval Medical Center (notably mental health records) in March 2011. Any further attempts to obtain these records would be futile. 38 C.F.R. § 2.159(c)(2). All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran contends that he is entitled to service connection for sleep apnea. Specifically, he asserts that the condition first manifested in service and was misdiagnosed as hay fever and/or allergic rhinitis. He claims that he suffered from daytime fatigue and exhaustion and snored excessively at night, which began after his weight increased from exercise and lifting weights in service. He alternatively claims that sleep apnea is secondary to his service-connected panic disorder, specifically that medications taken to control his panic disorder aggravate his sleep apnea. A November 2004 polysomnogram report confirmed a diagnosis of obstructive sleep apnea syndrome (OSA), nocturnal snoring and hypoxemia, and periodic leg movement disorder. Thus, the question of whether the Veteran has a current disability is not in dispute. What is in dispute however, is whether such disability had its onset in service or is otherwise causally related to the Veteran's service or proximately due to, the result of, or aggravated by the service-connected panic disorder. After review of the evidence, the Board finds service connection must be denied because the preponderance of the evidence is against such a finding. First, the Board shall discuss service incurrence. Service treatment records are negative for complaints or findings of sleep apnea. Notably, the February 1998 separation examination reveals the nose, sinuses, mouth and throat were evaluated as normal. The Veteran specifically denied having frequent trouble sleeping on the corresponding report of medical history. At this juncture, the Board would note that in statements and testimony, the Veteran claims that his symptoms of sleep apnea were misdiagnosed in service as allergies. However, the Veteran carries a diagnosis of allergic rhinitis separate and apart from his sleep apnea, as noted on VA examination in 2007. Moreover, his statement regarding misdiagnosis is refuted by the findings of the October 2010 VA examination. Specifically, the examiner opined: "[t]he mild symptoms of hay fever that were reported as being responsive to OTC medication does not correlate with the present symptoms and sleep apnea was not part of any differential diagnoses or treatments during his years of military duty." The Veteran has also submitted a lay statement from RAL, who was stationed with him at Fort Bragg between 1996 and 1998. It was submitted to support the Veterans additional statements and testimony that he snored during service, thus showing that he had sleep apnea. RAL indicated he witnessed the Veteran's heavy snoring. While the Veteran may have snored, and both the Veteran and RAL are competent to report such snoring, their statements do not establish a nexus between any acquired pathology and his military service. In this case, the October 2010 VA examiner found that "while nasal congestion such as that seen with rhinitis can cause snoring, it is well known that not all snoring is due to sleep apnea." Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. With regard to sleep apnea, it requires specialized training for a determination as to diagnosis and causation and is not susceptible of lay opinions on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran or those submitted on his behalf about the origins of his sleep apnea because they are not qualified to offer such opinions. Likewise, his representative is not competent to provide a probative opinion on the question of etiology, either. Thus, there is no evidence that shows that the Veteran suffered from obstructive sleep apnea during service. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). The Veteran maintains that he has suffered from continuous symptoms (snoring, choking during sleep, and daytime fatigue) since service. He has submitted statements from his daughter and son-in-law to support this proposition. He also testified that he was diagnosed within one year of separation from service; however, records of such initial treatment are unavailable. Continuous symptoms have not been shown since service. The objective medical evidence reveals that private treatment records dated in 1998 and a report of VA examination dated in 1999 were negative for complaints, treatment, or diagnosis of sleep apnea. Moreover, the Veteran filed an original claim for benefits in 1998 for his bilateral knees, hypertension, and plantar fasciitis with heel spurs and made no mention of sleep apnea. As noted above, sleep apnea was not diagnosed until 2004, six years after his separation from active duty service. The long time lapse can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While competent evidence indicates that the Veteran has a current diagnosis of sleep apnea, no medical evidence links the current disorder to service. The October 2010 VA examiner specifically concluded, "sleep apnea is less likely as not (less than 50/50 probability) caused by or a result of the Veteran's military service and no nexus could be found between his current diagnosis of sleep apnea and any continuous symptoms or treatment from the time of discharge to the date of his diagnosed problem." The examiner reasoned that a review of the record failed to establish a nexus between the Veteran's current symptoms of chronic fatigue, snoring, and headaches, to any treatment for these conditions while on military duty. The examiner was also unable to track continuous treatment or symptoms of sleep apnea from the time of discharge in 1998 to the diagnosed sleep apnea in 2004. Hence, service connection is not warranted on a direct basis for the claimed sleep apnea. As noted at the outset, the Veteran has also alleged secondary causation. Specifically, he claims that medications prescribed for his service-connected panic disorder aggravate his sleep apnea. The Veteran points to a January 2006 medical record that shows when he began to increase the dose of Sertraline to 75 milligrams (mg) he began to experience sleep problems, to include vivid dreams and having problems staying asleep. However, the entry also shows that when he reduced his dosage to 25 mg daily, he noticed some of his sleep problems were lessening. The Board would note that an entry dated previously in November 2005 revealed that the Veteran had no side-effects from the prescribed Sertraline 50 mg. The June 2013 VA examiner opined sleep apnea was less likely than not (less than 50 percent probability) caused by the panic disorder. The examiner reasoned that sleep apnea was first diagnosed in 2004, so the addition of Sertraline did not incur sleep apnea. The examiner also noted that a review of UptoDate, an online medical prescriptive service for the most current medical research driven information, failed to note any relationship between OSA and panic disorder. The examiner further found that "Harrisons Text of Medicine," 18th Edition, Vol. 2, also failed to note any relationship between medications and OSA. The examiner indicated that a review of the side effects noted in Sertraline did not list sleep apnea as being found associated with the drug. OSA risk factors included male gender, weight, age, ethnicity with certain craniofacial features, genetics, hypothyroidism, and acromegaly. OSA was said to be very common, under diagnosed, and easily treated. It occurred in 1-4% of all middle aged males and was due to airway being sucked closed on inspiration during sleep. The patients had narrow upper airways already during wakefulness but when they slept, muscle tone fell and the airway narrowed. The examiner stated the apnea and hypopneas terminated when the patient roused from sleep. The examiner concluded that the medical literature failed to support the Veteran's claim that his panic disorder permanently worsened or caused his sleep apnea. Thus, service connection is not warranted on a secondary causation basis. The Board is cognizant that the Veteran's representative argued in their July 2013 Brief that the Veteran's OSA has worsened with the advancement of his treatment for panic disorder. The Veteran further argued that the June 2013 VA opinion was inadequate as medical literature did not describe the Veteran's reaction to prescribed medications and only applied to a general controlled group. The Board finds this argument without merit. First, the Veteran has not submitted any objective medical evidence showing that his OSA worsened with treatment for his panic disorder. As noted above, as soon as the dose for Sertraline was reduced, his sleep symptoms abated. There are no further reports in the record of any problems with medication for panic disorder and/or their relationship to his OSA. 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 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, 22 Vet. App. at 304; 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 June 2013 VA examiner reviewed the claims file. The examiner previously performed a physical examination of the Veteran in October 2010. The opinion was based on objective findings, reliable principles, and sound medical reasoning. In addition, the opinion is not inconsistent with the contemporaneous evidence (i.e., no evidence showing the claimed worsening with advancement of treatment) or the medical literature, to include information that known side effects from Sertraline do not include OSA. The June 2013 opinion is far more probative than the Veteran's baseless allegations. In sum, sleep apnea was not diagnosed during service. The competent evidence does not establish a link between sleep apnea and active service or the service-connection panic disorder. Thus, the Board finds service connection for sleep apnea is not warranted. The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A § 5107(b). ORDER Entitlement to service connection for sleep apnea, to include as secondary to the service-connected panic disorder, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs