Citation Nr: 1328995 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 05-12 330 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to March 1963. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision that, in pertinent part, denied service connection for obstructive sleep apnea. The Veteran timely appealed. In August 2007 and in July 2010, the Board remanded the matter for additional development. In December 2011, the RO granted service connection for post-traumatic stress disorder (PTSD), and assigned an initial 70 percent evaluation, effective January 3, 2002. The RO's grant of service connection has resolved that matter, and it is no longer before the Board. In April 2012 and in May 2013, the Board again remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issue of entitlement to dependent benefits has been raised by the record (form submitted in August 2012), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Obstructive sleep apnea was not present during active service, and is not otherwise related to service, nor is it due to or aggravated by a service-connected disability. CONCLUSION OF LAW Obstructive sleep apnea was not incurred in service and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through December 2003, November 2007, and April 2012 letters, the RO or VA's Appeals Management Center (AMC) notified the Veteran of elements of service connection and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claim. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the November 2007 letter, the AMC specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record. The opinions expressed therein are predicated on a review of the history and consideration of the Veteran's complaints and symptoms. II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2012). In this case, the record reflects that the Veteran was first diagnosed with obstructive sleep apnea many years after his military discharge from service. Although the disability has persisted, the Veteran is nevertheless not entitled to direct service connection for obstructive sleep apnea because there is no competent evidence linking his current disability to any disease or injury in active service. Service treatment records do not reflect any findings or complaints of obstructive sleep apnea. The Veteran underwent no treatment for obstructive sleep apnea in service. Obstructive sleep apnea was not noted at the time of the Veteran's separation examination from active service in March 1963. The Veteran also reported experiencing sleep apnea for approximately ten years, when he was seen by VA for obstructive sleep apnea in the early 2000's. Moreover, in a June 2013 addendum, a VA examiner opined that it was unlikely that the Veteran's obstructive sleep apnea began in active service because, in essence, there was no supporting evidence for such a finding in the voluminous claims file. Thus, the evidence of record weighs against a finding that obstructive sleep apnea was present during active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the first credible showing of pertinent disability is many years after service with no competent evidence that it is in any way related to active service. Here, the Veteran asserts that his obstructive sleep apnea is secondary to his service-connected PTSD. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. Allen v. Brown, 7 Vet. App. 439. This had not been VA's practice, which suggests that the recent changes amount to a substantial change. See Allen, 7 Vet. App. at 447-449. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the Veteran. VA treatment records show that the Veteran was hospitalized in September 2001 for evaluation of obstructive sleep apnea. At that time he reported undergoing an earlier evaluation for obstructive sleep apnea in 1999 at another hospital. His symptoms included difficulties with breathing, a history of snoring, daytime somnolence, complaints of headaches, and frequent awakening. A C-Pap was ordered for the Veteran's use in January 2002. Records show that the Veteran often was not compliant with the use of the C-Pap. In August 2002, he reported using the C-Pap intermittently (3 out of 7 nights), and that he took the mask off during the night without realizing it. In December 2003, the Veteran reported that his somnolence had progressed to the point that he fell asleep throughout the day. Records dated in March 2007 show that the Veteran was tolerating using the C-Pap most nights. Results of a sleep lab study in April 2010 revealed moderate obstructive sleep apnea, and the Veteran began using a BiPap machine. In December 2011, the AMC granted service connection and assigned a 70 percent evaluation for PTSD, effective January 3, 2002. Following the Board's April 2012 remand, the Veteran underwent a VA examination in May 2012 for purposes of determining whether the Veteran's obstructive sleep apnea was promixately due to or the result of, or aggravated by his service-connected PTSD. Although the claims file was not available to the examiner, the examiner did review the Veteran's VA treatment records. The examiner noted that the Veteran had the classic symptoms of sleep apnea with lethargy during the day and poor sleep at night; and that the Veteran used a BiPap machine, which greatly improved his sleep and energy during the day. The examiner noted that the Veteran retired from working in 2004, secondary to PTSD and obstructive lung disease; and that his obstructive sleep apnea did not play a role in his retirement. The examiner then opined that the Veteran's obstructive sleep apnea was unlikely to be related to PTSD because there was no pathophysiological relationship between the two. In a June 2013 addendum, the VA examiner noted a review of the Veteran's voluminous claims file; and opined that it is unlikely that the Veteran's sleep apnea began in service because there is no evidence for this. The VA examiner also reiterated that there is no pathophysiological relationship between PTSD and sleep apnea. Therefore, it is unlikely that the Veteran's PTSD caused or contributed to the Veteran's obstructive sleep apnea. In support of the opinion, the VA examiner reasoned that, as there is no relationship between PTSD and sleep apnea, no aggravation can be considered. In other words, the VA examiner found it unlikely that the Veteran's obstructive sleep apnea was aggravated by his PTSD. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the June 2013 addendum to be persuasive in finding that the current obstructive sleep apnea was unlikely related to active service or due to or aggravated by the service-connected PTSD. The VA examiner reviewed the medical history and provided a rationale which considered whether there was any pathophysiological relationship between PTSD and sleep apnea. The evidence, including the service separation examination, does not show that obstructive sleep apnea was present in service. The medical evidence shows that, without any pathophysiological relationship, there is no basis for obstructive sleep apnea to be caused or aggravated by the service-connected PTSD. Hence, the Board finds the opinions in the June 2013 addendum are factually accurate, fully articulated, and contain sound reasoning. Therefore, the opinions are afforded significant probative value. Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran contends that his obstructive sleep apnea was caused by or had worsened due to his PTSD, he is not shown to have the medical expertise to offer an opinion on such a complex medical question. He is not shown to be competent to render an opinion as to the nature of his underlying obstructive sleep apnea, or to identify that a disability such as obstructive sleep apnea is related to service or due to or aggravated by his service-connected PTSD. In essence, the Board finds that the issue presented in the case is not one in which the Veteran's lay contentions can serve to support an award of service connection. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for obstructive sleep apnea, to include as secondary to PTSD. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for obstructive sleep apnea, to include as secondary to PTSD, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs