Citation Nr: 1333466 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-00 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for status-post uvulopalatopharyngoplasty (UPPP), claimed as obstructive sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and his spouse ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from December 1979 to December 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, denied service connection for sleep apnea. The U.S. Court of Appeals for Veterans Claims has held that the Board must broadly construe claims, and consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the record reflects that the Veteran was diagnosed with sleep apnea during service and underwent UPPP to help alleviate the symptoms of sleep apnea; he is currently diagnosed with residual surgical scarring. Accordingly, the Board re-characterizes the service connection claim more broadly than did the RO, to include any residuals from the UPPP. In March 2011, the Veteran and his spouse testified at a hearing held before a Decision Review Officer (DRO). A copy of the hearing transcript has been associated with the claims file. The issue of service connection for an initial compensable rating for service-connected allergic rhinitis has been raised by the record (see June 2009 VA examination report), 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. FINDINGS OF FACT 1. During service, the Veteran was diagnosed with sleep apnea and underwent UPPP, which resolved the sleep apnea. 2. The Veteran does not currently have a disability of sleep apnea. 3. The residuals of the in-service UPPP include a scar which mildly restricts movement of the soft palate. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for service connection for scarring, status-post UPPP, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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) (2013). 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). In this case, the VCAA duty to notify initially was satisfied by way of a pre-adjudicatory letter the RO sent to the Veteran in April 2008. This letter informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence, including advising him of how disability ratings and effective dates are assigned. Thus, the Veteran has received all required notice concerning the claim. VA also has a duty to assist the veteran in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. The claims file contains the Veteran's STRs, VA and private medical treatment evidence, a March 2011 DRO hearing transcript, and the Veteran's written statements. In this case, the Veteran underwent a VA respiratory disorder examination in May 2009 and a June 2009 sleep study to ascertain whether a diagnosis was warranted for the current complaints of sleep disturbance, snoring, and excessive daytime drowsiness. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The May 2009 VA examination and June 2009 sleep study are adequate because they were performed by a medical professional, and were based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary to decide this claim that has not been obtained and that is obtainable; therefore, no further notice or assistance with this claim is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). VA's duties to notify and assist with this claim have been satisfied. Service Connection Legal Authority In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The most fundamental requirement for any claim for service connection is current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). The Veteran's claimed disorder, sleep apnea, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); thus, the presumptive service connection provisions at 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service and "continuous" symptoms since service do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis of Service Connection Claim for Status-Post UPPP In the case at hand, the Veteran asserts that he has sleep apnea, which was caused by his military service. He claims that the symptoms he experienced in service that included excessive snoring show the presence of sleep apnea during service. He contends that current symptoms of sleep disturbance, snoring, and excessive daytime drowsiness show that he has sleep apnea. After a review of all the lay and medical evidence, the Board finds that, although the Veteran was diagnosed with sleep apnea and underwent corrective UPPP surgery while serving in the military, the surgery resolved the sleep apnea. The Veteran is not currently diagnosed with sleep apnea, but does have residual scarring over his soft palate from the UPPP; therefore, the criteria for service connection for sleep apnea (current disability) have not been met, but the criteria for service connection for the scarring have been met (as a residual to the in-service surgery). The Board finds that during service the Veteran was diagnosed with sleep apnea and underwent UPPP, which resolved the sleep apnea. A September 2002 service treatment record shows that the Veteran went to sick call, complaining of excessive snoring. An initial sleep disorder evaluation showed evidence of mild sleep apnea. Following a subsequent October 2002 overnight polysomnogram, the Veteran was diagnosed with moderate obstructive sleep apnea. The Veteran underwent a UPPP in December 2002 to correct the sleep apnea. A January 2003 follow-up note indicated that the Veteran's sleep apnea had been resolved. Other than a scar over the Veteran's soft palate, no residuals were noted. The Veteran was not placed on permanent profile or permanent restriction in service because of sleep apnea. The Veteran's UPPP was acknowledged on his July 2003 discharge examination report, and no residual complaints or conditions were noted. Sleep apnea was not endorsed on an ambulatory encounter summary, and he was released without limitations. The Board finds that the weight of the evidence demonstrates that the Veteran does not have a current disability of sleep apnea. The weight of the evidence, including the in-service and post-service medical evidence, shows that the in-service sleep apnea resolved with the UPPP, leaving no residual disability of sleep apnea. The post-discharge evidence of record does not contain any notation indicating a diagnosis of sleep apnea. Sleep apnea is defined as "transient periods of cessation of breathing during sleep." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 118 (31st ed. 2007). On the question of current disability of sleep apnea, the Veteran was afforded a May 2009 VA respiratory disorder examination at which he reported sleep disturbance, snoring, and excessive daytime drowsiness. Upon physical examination in May 2009, the Veteran's uvula was absent and scarring was present with the soft pillar. The VA examiner reviewed the Veteran's claim file, including the in-service diagnosis and subsequent treatment for sleep apnea. The VA examiner noted that the Veteran's scarring seemed to at least mildly restrict the motion of the soft palate. The Veteran was then afforded a June 2009 VA overnight polysomnogram. The overall sleep efficiency in the study was 94.1 percent. The overall respiratory disturbance index was 3.0, and the desaturation index was 1.8. The arousal index was 5. No significant periodic leg movements during sleep were noted. The overnight polysomnogram did not demonstrate significant sleep pathology. The VA examiner interpreting the sleep study noted that the Veteran's sleep disturbance had a significant effect on his occupation, and listed decreased concentration and weakness or fatigue as the main concerns. The examiner also stated that the Veteran cannot drive for more than an hour at a time, due to excessive daytime drowsiness. The examiner concluded that the present sleep study is negative for sleep apnea. The May 2009 VA examination with the June 2009 polysomnogram is highly probative evidence, as to the current nature of the Veteran's complaints. Hence, the probative evidence shows that the Veteran is not currently diagnosed with sleep apnea. During the March 2011 hearing, the Veteran and his spouse testified that he currently experiences symptoms of a sleep disorder, and suggested that the June 2009 VA sleep study represented "one snapshot out of 365 days." The DRO stated that he would delay his decision by 60 days so that the Veteran could undergo an independent sleep study to obtain a second opinion if he chose to do so. There is no indication that he underwent a second sleep study, nor has he presented any medical evidence to refute the 2009 VA examiner's determination that he does not have a disability of sleep apnea. In his June 2012 informal hearing presentation, the Veteran acknowledged that his VA sleep study was negative for sleep apnea, but requested that the issues of allergic rhinitis and psychological factors be referred back to the RO for consideration. The June 2009 VA examination report suggested that allergic rhinitis or psychological factors should be considered as alternative explanations for the Veteran's sleep disturbance. The Veteran is currently service connected for allergic rhinitis. As noted in the introduction, the Board has referred the issue of entitlement to an increased rating for allergic rhinitis to the RO. As to the consideration of psychological factors, the Veteran has not presented a theory of service connection on which to base a claim. The Veteran is not service connected for a psychological disorder. Rather, the Veteran has claimed that his in-service sleep disturbance was caused by sleep apnea, not by any psychological factors. To the extent that the Veteran or the evidence suggests a psychological disorder as the source of the symptoms of sleep disturbance, such evidence tends to weigh against the claim because it only shows a non-service related etiology of the symptoms claimed to be sleep apnea. Such suggestion that a non-service-related psychological disorder may be the etiology of the symptoms claimed as sleep apnea also does not raise any type of VA service connection claim, as it does not have any tendency to relate the claimed symptoms to service. The only evidence suggesting a relationship between the current complaints of sleep disturbance and service are the statements of the Veteran and his spouse. The Board finds that the Veteran and his spouse are competent to report observable symptoms such as sleep disturbance, snoring, and excessive daytime drowsiness. See Layno, 6 Vet. App. 465, 470. The Board also finds that they are credible to report such symptoms; however, without the appropriate medical training and expertise, they are not competent to provide an opinion on a medical matter, such as the diagnosis of sleep apnea, and the etiology of sleep apnea. Sleep apnea requires specialized testing to diagnose, such as a clinical sleep study, which the Veteran cannot perform on himself. This level of medical testing involves specialized medical knowledge and training. The evidence does not show that the Veteran or his spouse has the specialized education, training, or experience required to render a diagnosis of sleep apnea or to relate sleep apnea to symptoms reported in service, especially in the absence of evidence of apneas during service. Jandreau, 492 F.3d 1372, 1377. Accordingly, the competent medical evidence (the June 2009 sleep study and VA examination showing no diagnosis of sleep apnea) outweighs the lay reports of having sleep apnea. It is entirely permissible in this circumstance to give more credence to the medical evidence, including the VA examiner's opinion, over the lay testimony. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board may weigh the absence of contemporaneous medical evidence in service as a factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence of onset of symptoms in service lacks credibility merely because it is unaccompanied by contemporaneous service treatment or medical record evidence). As noted above, the Veteran was provided an opportunity to submit medical evidence of a diagnosis of his current sleep disruption symptoms to show sleep apnea, but did not do so. In addition, he has not provided any information as to where VA could obtain such evidence. Accordingly, the greater weight of the probative evidence is against finding that the Veteran has a current disability of sleep apnea. As a result, the claim must fail. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain, 21 Vet. App. 319. However, where the overall record shows no diagnosis of the claimed disability, as is the case here, that holding would not apply. As such, the weight of the evidence is against a finding of currently diagnosed sleep apnea. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for sleep apnea, and the claim must be denied. Because the preponderance of the evidence is against the service connection claim for sleep apnea, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. However, as indicated, the May 2009 VA examination report reflects that the Veteran has a scar over the soft palate where his uvula was removed, which mildly restricts movement of the soft palate. The VA examiner determined that this scar is a residual of the in-service surgery. Thus, there is evidence of a current disability (the scar on the Veteran's soft palate), evidence of an in-service event (the UPPP surgery), and evidence of a nexus between the two provided by the 2009 VA examiner. Accordingly, service connection is warranted for the Veteran's scar over the soft palate, status-post UPPP, as residual disability. ORDER Service connection for sleep apnea is denied. Service connection for the residual scar over the soft palate, status-post UPPP, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs