Citation Nr: 1333576 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-28 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected restrictive lung disease. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1978; from November 1990 to July 1991, and from February 2003 to November 2004, including service in Kuwait and Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2009, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript is associated with the claims file. In August 2010 and August 2012, the Board remanded the case for further development. As discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). By way of background, the Board requested VHA medical expert opinions in January 2013 and July 2013. As the opinions sought have been obtained and associated with the Veteran's claims file, the Veteran's claims have been returned to the Board for further appellate review. FINDING OF FACT The preponderance of the probative evidence does not show obstructive sleep apnea to be caused or aggravated by any disease, injury, or incident of service, including as secondary to a service-connected restrictive lung disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and 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)(1). The notice requirements apply to all five elements of a service connection claim, including 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify. Specifically, a November 2004 letter, sent prior to the decision on appeal, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, and of his and VA's respective responsibilities in obtaining the evidence and information. A letter sent in April 2006 advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date. While the April 2006 letter was issued after the initial September 2005 rating decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant notification letter. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims (Court) clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the April 2006 letter was issued, the Veteran's claim was readjudicated in the August 2007 statement of the case and December 2011 and October 2012 supplemental statements of the case. Therefore, any defect with respect to the timing of the notice has been cured. Further, the Veteran's claim is being denied, so there can be no possibility of any prejudice to him regarding these elements. See Smith v. Shinseki, 24 Vet. App. 40, 49 (2010) (finding failure to provide Dingess notice to Veteran whose service connection claim was being denied to be harmless error). With respect to the secondary aspect of the Veteran's service connection claim, a theory raised in May 2013, the Board notes that the November 2004 and April 2006 notice letters failed to address such theory of entitlement. This being the case, the notice as relevant to the secondary aspect of the Veteran's claim was defective. Neither the Veteran nor his representative has identified any deficiency in notice which would compromise a fair adjudication of the claim. Nevertheless, the Board has considered whether the defective notice provided to the Veteran resulted in prejudicial error. Where there is a defect in the content of notice, it may be established that such error did not affect the essential fairness of the adjudication by showing that the essential purpose of the notice was not frustrated. Sanders v. Nicholson, 487 F.3d 881, 889 (2007). Such a showing may be made by demonstrating, for example, (1) that the claimant had actual knowledge of what was necessary to substantiate the claim and that the claim was otherwise properly developed, (2) that a reasonable person could be expected to understand from the notice what was needed to substantiate the claim, or (3) that the benefit could not be awarded as a matter of law. Id. In this case, the evidence of record reflects that the Veteran had actual knowledge of what was necessary to substantiate his claim of entitlement to service connection on a secondary basis. In this regard, in the September 2013 informal hearing presentation (IHP), the Veteran's representative argued that he was entitled to service connection because his OSA was caused or aggravated by his service-connected restrictive lung disease. Therefore, the Board finds that he has demonstrated actual knowledge of the evidence and information necessary to substantiate his claim of entitlement to service connection for OSA on a secondary basis. Moreover, the claim was properly developed, as the Board obtained a medical opinion addressing this theory. For the foregoing reasons, the Board finds that VA's failure to provide the Veteran with adequate notice with respect to the secondary aspect of his claim did not affect the essential fairness of the adjudication of his claim and, therefore, such error is harmless. Accordingly, the Board finds that VA has satisfied its duty to notify in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Relevant to the duty to assist, the Veteran's private treatment records, VA treatment records, service treatment records (STRs), and service personnel records have been obtained and considered. The Veteran has not identified any additional relevant outstanding records that have not been requested or obtained. The Veteran was afforded a VA examination in November 2010 in conjunction with the claim on appeal. As discussed in the August 2012 remand, the Board determined that the medical opinion addressed the question of direct service connection but failed to address whether the condition preexisted service and was aggravated therein. A September 2012 VA addendum opinion adequately addressed the question of whether the condition preexisted service but the evaluator could not opine on aggravation without resorting to speculation. Consequently, in January 2013 the Board requested a VHA medical expert's opinion. The resulting opinion, dated March 2013, discussed the evidence of record thoroughly and addressed the both direct service connection and aggravation. In the May 2013 IHP, the Veteran's representative raised the theory that the OSA was proximately caused or aggravated by the Veteran's service-connected lung disease. Accordingly, the Board requested another VHA medical expert's opinion addressing this question. The resulting opinion, dated July 2013, addresses the question of secondary service connection. The Board finds that these medical opinions are adequate in order to evaluate the Veteran's OSA claim, as they were based on a thorough review of the claims file including the STRs, Veteran's lay statements, and treatment records, as well as an examination of the Veteran, in the case of the November 2010 opinion. Moreover, the examiners and somnologists provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Thus, the record now contains sound medical opinions upon which a decision may be based. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds that the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard. D'Aries, supra. The Veteran has also been afforded a hearing before a VLJ in which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the service connection claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms warranting service connection, as well as when such symptomatology occurred. In addition, the VLJ asked specific questions in order to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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 service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection also may be established for disability that is proximately due to or aggravated by an already service connected disorder. 38 C.F.R. § 3.310. 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 there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that service connection is warranted for his current OSA because it was caused or aggravated by service. Alternately, he asserts that his OSA was caused or aggravated by his service-connected restrictive lung disease. The Veteran clearly has a current disability of OSA. Treatment records show it was diagnosed by sleep study in October 1997. Direct service connection The STRs show that the Veteran complained of symptoms of shortness of breath, dyspnea, and fatigue during his second period of active service from November 1990 to July 1991. There is also a report in May 1991 of dyspnea awakening him at night. The Veteran contends that these symptoms are indicative of OSA and show that he already had OSA during his second period of active service, before the clinical diagnosis in 1997. The September 2012 VA addendum opinion stated that the Veteran's OSA "clearly and unmistakably existed prior to the Veteran's period of active duty beginning in 2003" but had its onset after 1991. The VA examiner reasoned that there is no documentation of the condition existing during the second period of active service. While the Veteran complained of exertional dyspnea during that period, there was no indication or documentation regarding sleep apnea. Moreover, she explained, sleep apnea and exertional dyspnea are two different entities. The somnologist providing the March 2013 VHA opinion stated that it was not possible to opine whether it was at least as likely as not that the OSA manifested between November 1990 and July 1991. However, he stated that while the Veteran complained of fatigue, sleep symptoms were recorded and reported by neither providers nor the Veteran; nor is there any evidence regarding his sleep habits during this period. "All of his complaints at that time were mostly related to his respiratory illness...his fatigue may have been related to that. It is possible that he may have also had narcolepsy at that time which could have made him tired and fatigued." The July 2013 VHA somnologist provided a clearer opinion. He noted the same complaints of generalized fatigue and dyspnea during the second period of service. He pointed out, "[T]here is no specific mention of snoring or witnessed apneas. . . . Although not impossible, OSA at this time in a young non-obese male...would have been less likely in general." In summary, all three of these opinions highlight the fact that there is no evidence in the STRs of symptoms such as snoring or witnessed apnea from November 1990 to July 1991. None of the physicians could identify any positive evidence that OSA manifested prior to the October 1997 sleep study. Rather, the September 2012 VA examiner clearly opined that the OSA had its onset after 1991, and the July 2013 somnologist indicated that the symptoms of fatigue, dyspnea, and shortness of breath were more likely related to the Veteran's narcolepsy and/or service-connected respiratory disability. The September 2012 VA examiner and July 2013 somnologist reviewed the claims file, including lay statements and STRs, and provided adequate rationale for their medical opinions. The Board therefore finds they are probative. These medical opinions are partially based on a lack of documentation in the claims file of any symptoms, treatment, or diagnosis of OSA during the second period of active service. However, a lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The lay evidence in this case shows that the Veteran asserts his OSA already existed during his second period of service. He points to symptoms of fatigue, dyspnea, and shortness of breath. However, while he is competent to provide testimony relating to symptoms or facts of events that are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). In its capacity as a finder of fact, the Board finds that the Veteran's testimony is credible with respect to these symptoms because it is consistent with the STRs. Lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Board can only give lay evidence the weight to which it is entitled. The Board finds that diagnosing OSA is complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The diagnosis of OSA falls outside the realm of common knowledge of a lay person, as it is diagnosed by medical tests such as sleep studies. There is no evidence that the Veteran has the requisite medical knowledge to administer such tests or interpret the results. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, while the Veteran competently and credibly described his respiratory symptoms, he is not competent to opine on the complex medical question of whether he had OSA during his second period of service. Thus, the lay evidence in this case is not probative on the question of when OSA had its onset. There is no probative evidence of record showing that the Veteran's OSA had its onset during the period of active service from November 1990 to July 1991. The probative medical opinion evidence shows that the Veteran's OSA had its onset after 1991, between periods of active service. Service connection may still be warranted if the OSA was otherwise caused by active service. The November 2010 VA examiner opined that "there does not appear to be any association between the diagnosis of OSA and active duty service." He provided a rationale for this conclusion, first noting that documentation from 1991 medical records concluded that the respiratory symptoms at that time were related to exposure to oil fire smoke in Kuwait, and indicated possible diagnoses of asthma and reactive airway disease. "There is no link identified between the symptoms exhibited by the Veteran and the subsequent diagnosis of OSA." The VA examiner noted that a January 1996 treatment note reports that the Veteran was having "wheezes" in his sleep but answered "no" to the question of whether he had trouble sleeping. Moving on to the medical records dated in 2003 and 2004, he concluded that OSA was accurately diagnosed, though the Veteran's diagnosed narcolepsy led to varying test results and responses to CPAP use, confusing the issue. The Board finds that this opinion, based on a review of the claims file and examination of the Veteran, is adequate and probative. Nieves-Rodriguez; Stefl. As to an in-service aggravation of the disease, the November 2010 examiner and both VHA opinions concurred that there was no aggravation of the OSA during the third period of active service, from February 2003 to November 2004. The November 2010 VA examiner stated, "My assessment is not able to find a link between the OSA and the 2003-2004 period of service." Both VHA somnologists stated that the evidence showed that when his OSA was diagnosed in 1997, the polysomnogram showed an RDI of 16.8 and a low saturation of 83 percent, which is considered moderate by modern American Academy of Sleep Medicine guidelines. However, the 2003 polysomnogram showed an RDI of 12, which is considered mild by the same guidelines. As a result, both VHA somnologists concluded that there was no aggravation during the period of service, because the evidence does not show that the OSA worsened between 1997 and 2004. The Veteran contends on his own behalf that his OSA was proximately caused or aggravated by his active military service. A lay person is competent to report on that of which he has personal knowledge. Layno. The Board has found the Veteran's report of his symptoms to be credible, and lay evidence may be competent to establish medical etiology or nexus. Davidson. However, a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient. Waters v. Shinseki, 601 F.3d 1274 (2010). While the Veteran competently and credibly described his respiratory symptoms, he has offered only conclusory statements. Although lay persons are competent to provide opinions on some medical issues, Kahana, in this case the question of whether OSA is caused or aggravated by an incident of service falls outside the realm of common knowledge of a lay person. Jandreau. The Veteran is not shown to possess the medical knowledge to attribute OSA, or aggravation thereof, to his service. While the Veteran has competently and credibly described his symptoms, he is not competent to opine on such a complex medical question as the etiology or aggravation of his OSA. As such, the Board accords more weight to the opinions of the VA examiner and VHA somnologists, who concluded the Veteran's OSA was not caused or aggravated by his service. Based on the foregoing, there is no evidence of in-service incurrence or aggravation of OSA. Accordingly, service connection may not be granted on a direct basis. Secondary service connection The Veteran has also contended that his OSA is proximately due to or aggravated by his service-connected restrictive lung disease. The July 2013 VHA somnologist opined that it less likely than not that the Veteran's service-connected restrictive lung disease caused his OSA. She explained that the spirometry in 1991 and 1995 were normal and inconsistent with restriction, so she was unsure how the restrictive lung disease was diagnosed. As a result, she was uncertain that the Veteran truly has restrictive lung disease. Moreover, she felt the Veteran's OSA was more likely related to his risk factors, including age and obesity. The March 2013 VHA somnologist also concluded that there was no evidence for restrictive lung disease. As to aggravation, the July 2013 somnologist opined that it was less likely than not that his restrictive lung disease, if present, aggravated his sleep apnea. She noted again that it was unclear that the Veteran actually has restrictive lung disease. More importantly, his 1997 and 2003 polysomnograms actually show a decrease in severity; therefore she found aggravation unlikely. In summary, there is no medical evidence of record supporting the claim that the Veteran's service-connected restrictive lung disease proximately caused or aggravated his OSA. The Veteran contends on his own behalf that his OSA was proximately caused or aggravated by his restrictive lung disease. The Board has found the Veteran's report of his symptoms to be credible, and lay evidence may be competent to establish medical etiology or nexus. Layno; Davidson. However, a mere conclusory generalized lay statement is insufficient, and while the Veteran competently and credibly described his respiratory symptoms, he has offered only conclusory statements. Waters. Although lay persons are competent to provide opinions on some medical issues, Kahana, in this case the question of whether OSA is caused or aggravated by a service-connected disability falls outside the realm of common knowledge of a lay person. Jandreau. The Veteran is not shown to possess the medical knowledge to attribute OSA to his service-connected respiratory disability. While the Veteran has competently and credibly described his symptoms, he is not competent to opine on such a complex medical question as the etiology or aggravation of his OSA. As such, the Board accords significantly more weight to the opinions of the VA examiner and VHA somnologists, who concluded the Veteran's OSA was not caused or aggravated by his service-connected restrictive lung disease. As there is no probative evidence of record suggesting a connection between service and the Veteran's OSA, or between his OSA and service-connected restrictive lung disease, the Board finds no basis to grant service connection. Therefore, his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Service connection for obstructive sleep apnea is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs