Citation Nr: 1329328 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-13 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and T.N. ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to June 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Jurisdiction over the matter was transferred to the Chicago, Illinois RO during the pendency of the appeal. In September 2011, the Veteran and her friend, T.N., testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In February 2012 and March 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) for additional development. It has been returned now to the Board for appellate consideration. FINDING OF FACT Sleep apnea did not have onset during the Veteran's active service, was not caused by her active service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012) REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service- connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in August 2008 of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in October 2008. Nothing more was required. VA has also complied with its duty to assist the Veteran in the development of her claim. In this regard, the Board notes that all available service treatment records (STRs) and post-service treatment records were obtained. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claim; and, the Board is also unaware of any such evidence. The Veteran has also been afforded appropriate VA examinations to determine the etiology of her claimed sleep apnea. Most recently, as directed by the March 2013 Board remand, a VA examination was provided in May 2013 so as to ascertain the etiology of any currently-diagnosed sleep apnea. The report of the examination reflects that the examiner reviewed the Veteran's medical history, recorded her lay history/complaints, conducted an appropriate examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The examination included the requested opinion and included rationale, which was used to support the examiner's conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Accordingly, the Board finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Finally, discussion of the Veteran's September 2011 Travel Board hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue of entitlement to service connection for a lung (respiratory) disability (to include pulmonary sarcoidosis and sleep apnea) was identified at the hearing. The Veteran was asked whether she had any evidence that this disability could be related to service or service-connected disability. Sources of evidence relevant in this regard were identified during this process. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Sleep apnea is not explicitly recognized as a chronic disease under 38 C.F.R. § 3.309(a); therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Furthermore, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, the veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has thoroughly reviewed all the evidence in the Veteran's claims file, including evidence in VVA. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. STRs note that the Veteran was diagnosed with a lung nodule in 1988. STRs dated from 1981 to 1993 (including records from the Swedish American Hospital) are negative for complaints or findings related to sleep apnea. The Veteran filed a claim for service connection for multiple disabilities in October 1993. She made no reference to sleep apnea. A November 1993 was similarly absent for any complaints, treatment, or diagnosis of sleep apnea or any symptoms related thereto. A December 2007 VA primary care report notes that this was the Veteran's first visit for VA treatment. She reported that her family complained that she snores very loudly. She indicated that most of her family has sleep apnea. On examination, the Veteran was noted to be overweight. The examiner stated that due to the Veteran's neck size, it was recommended that she be evaluated for sleep apnea. A June 2008 VA pulmonary consultation report notes that the Veteran had been diagnosed with sleep apnea from a sleep study done in the past. She had been using a CPAP machine, but was not tolerating it well. The examiner reviewed the Veteran's sleep study and concluded that she had significant obstructive sleep apnea. A nasal pillow was recommended for use with the CPAP machine. The Veteran submitted the instant claim in July 2008. A January 2009 VA examination report notes the Veteran's history of: a lung nodule diagnosed in 1988; sleep apnea diagnosed by VA examiners after the Veteran's initial consultation in December 2007; and sarcoidosis diagnosed in 2008. After reviewing the claims file and examining the Veteran, the examiner opined that the Veteran's sleep apnea was not caused by or aggravated by her sarcoidosis, or caused by the lung nodule found on active duty. The examiner stated that she had consulted with a pulmonologist who stated that the Veteran's sleep apnea was an incidental finding. VA treatment records dated from 2009 to 2012 note the Veteran's ongoing treatment for sleep apnea. A March 2012 VA examination report notes the Veteran's history of sleep apnea, diagnosed in 2008, with snoring and hypersomnolence. After reviewing the claims file, the examiner opined that the Veteran's sleep apnea was caused by the posterior oropharynx closing down during sleep, a condition she referred to as an "anatomic entity." The examiner stated that sleep apnea is not related to smoking, allergens, sarcoid, or anything that the Veteran would have come in contact with during service and did not stem from a calcified pulmonary nodule. She concluded that the Veteran's sleep apnea, diagnosed years after her military service, was not related to, caused by, or aggravated in any way by her active military service. The Board granted entitlement to service connection for pulmonary sarcoidosis in a March 2013 decision. A March 2013 rating decision effectuated the award of service connection, and assigned a 0 percent rating, effective July 21, 2008. In May 2013, the Veteran underwent a VA examination by an internist who specializes in respiratory disabilities. The examiner stated that the Veteran's sleep apnea was diagnosed as noted on VA examination in 2012 (in 2008 after being seen by VA with symptoms of snoring and hypersomnolence.) The examiner noted that these findings were confirmed by polysomnogram in 2009. After reviewing the claims file, the examiner stated: I opine that it is not likely that [the Veteran's] obstructive sleep apnea begain [sic] during her years of military service. Reports of snoring has [sic] been shown to be a poor predicter [sic] of obstructive sleep apnea in the medical literature according to the Institute of Medicine (i.e. a person can be a snorer and not have [obstructive sleep apnea]. Her [obstructive sleep apnea] was diagnosed decades after her separation from the military so it is not possible to know when she actually began to have [obstructive sleep apnea]. As regards secondary service connection, the examiner opined: I opine her obstructive sleep apnea was not caused by her sarcoidosis, either during active service or after separation. These are two separate entities with separate etiologies ([obstructive sleep apnea] is an anatomical abnormality of closing off of the upper posterior oropharynx and sarcoidosis is not a readily understandable disease but it is a granulomatous disease not an anatomical abnormality). . . . I opine that since there is no relationship between her [obstructive sleep apnea] and her [s]arcoidosis, there is therefore no possibility that her sarcoidosis has permanently aggravated her or worsened her obstructive sleep apnea beyond its natural progression. Regarding the etiology of obstructive sleep apnea, the medical evidence of record shows that such disability has been diagnosed. However, as noted above, the Veteran's STRs are silent for any diagnosis of obstructive sleep apnea. The first medical evidence of such disability is more than 15 years after service. While not necessarily outcome determine, such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The evidence of record does not include any medical opinion that the Veteran's obstructive sleep apnea is (or might be) related to her active service. To the contrary, the 2012 and 2013 VA opinions are clearly against the Veteran's claim. Regarding the Veteran's claim of secondary service connection, again, the VA medical opinions of record (as noted above) are clearly against the Veteran's claim. Specifically, 2009 and 2013 VA examiners opined that the Veteran's current obstructive sleep apnea was not caused or aggravated by her service-connected pulmonary sarcoidosis. The Board finds these opinions to be persuasive because they are based on a review of the Veteran's pertinent history. Notably, the VA examiners specified reasons for their conclusions, as noted above. There is no competent medical opinion of record to the contrary. Consideration has been given to the Veteran's assertion that her sleep apnea had its onset in service or is otherwise related to her active service or service connected sarcoidosis. However, while lay persons are competent to provide opinions on some medical issues, , 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a sleep disorder, including obstructive sleep apnea, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Obstructive sleep apnea is not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that a sleep study with oxygen saturation readings and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report sleep disturbance, snoring, and fatigue symptoms, there is no indication that the Veteran is competent to etiologically link these reported in-service symptoms to her sleep apnea, diagnosed several years after her discharge, or to link his current diagnosis of obstructive sleep apnea to a service-connected disability. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating sleep disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Moreover, the Veteran's assertions that she has been experiencing chronic sleep problems, to include snoring, since service is questionable. The Board again notes that the Veteran filed a claim for multiple disabilities/disorders when she left service in 1993. Such shows that she possessed knowledge of the VA benefits system and had little reluctance to file claims for service connection for such innocuous conditions such as eye strain. Had she been experiencing problems with sleep at that time, the Board believes she would have identified the same. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal and her claim must be denied. ORDER Service connection for sleep apnea is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs