Citation Nr: 1334169 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-01 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for sleep apnea to include as secondary to service-connected diabetes mellitus and/or post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from February 1965 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. A Travel Board hearing was held on November 3, 2011, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. In February 2012, and May 2013, the Board remanded this claim for additional development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, an opinion was given which is adequate to make a determination in this claim. The case has been returned to the Board and is ready for further review. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Sleep apnea did not have its onset in service; is not the result any in-service event, injury, or disease; and is not proximately due to or the result a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea to include as secondary to service-connected diabetes mellitus and/or post-traumatic stress disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in October 2008, prior to the initial unfavorable AOJ decision. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the type of evidence necessary to establish service connection, how VA would assist in developing the claims, and his and VA's obligations in providing evidence for consideration. The letter informed the Veteran of the type of evidence necessary to establish secondary service connection, how VA would assist in developing the claims, and his and VA's obligations in providing evidence for consideration. It also provided notice with respect to disability ratings and effective dates. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the claim and providing him with VA examinations. The Veteran's service treatment records, VA treatment records, and the reports of VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional records that VA needs to obtain to ensure an equitable adjudication of the claims. With regard to the VA examinations, the Board notes that once 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 Board observes that the examiners reviewed the claims file, noting relevant documents in the file and post-service treatment evidence, documented the Veteran's subjective complaints and medical history, and examined the Veteran. The examiners then provided findings that were pertinent. There is nothing to suggest that the examiners' findings were incomplete or inconsistent with the other medical evidence contained in the claims file. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the appellant's claim without further development and additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Therefore, the Board determines that the appellant will not be prejudiced by the Board proceeding to the merits of the claim. Service connection The Veteran claims that he is entitled to service connection for sleep apnea, either on the basis that it is directly related to active service or on the basis that it is related to his service-connected diabetes mellitus and/or his service-connected PTSD either by causation or by aggravation. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen 's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) Where a chronic disease under 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under section 3.310 of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). 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). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence 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). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006); 38 C.F.R. § 3.310(b) (2013). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The service treatment records show that at service entrance in February 1965, no sleep disorder was noted. At separation in December 1967, the Veteran denied having frequent trouble sleeping, and no sleep disorder was complained of or found on examination. Outpatient treatment records from the Philadelphia VAMC show that the Veteran was seen at the behavioral Sleep Medicine Clinic in July 2008 for sleep problems since he returned from Vietnam. The VA examiner noted the Veteran is obese. In August 2008 the Polysomnogram results diagnosed the Veteran with obstructive sleep apnea. In a letter from a private examiner dated in August 2008 stated that the Veteran's recent -sleep study revealed that he has sleep apnea, a breathing disorder. In October 28 2008 the VA examiner noted the Veteran had been using the CPAP machine for two months. On VA examination in October 2008, the VA examiner noted the Veteran's claims folder was unavailable for review. The VA examiner stated that it should be noted that there is no known association between the development of post traumatic stress disorder and diabetes mellitus with the subsequent development of sleep apnea and that the only possible connection between the two diseases is that type II diabetes is typically seen in people who are significantly overweight and sleep apnea is also seen in people who are significantly overweight. It was stated that however it should be noted the Veteran was not overweight 40 years ago when he left the service. The examiner stated that the issue of excess weight cannot be attributed in to a service connected condition. It was stated that therefore, in conclusion, sleep apnea is not caused by or the result of either this Veteran's diabetes mellitus type II or his post traumatic stress disorder. The diagnoses were: obstructive sleep apnea, type II diabetes, and post-traumatic stress disorder. A VA examiner offered an opinion in May 2012. It was stated that the Veteran's sleep apnea has not been aggravated by, in other words, permanently worsened beyond normal progression of the disorder either by the service-connected diabetes mellitus or by the PTSD as there is no medical evidence to indicate that sleep apnea is a condition that is caused by diabetes mellitus or PTSD. It was indicated that furthermore it is the examiner's medical opinion that after reviewing the service treatment records this Veteran is not only is claiming that the sleep apnea is related to the service-connected diabetes mellitus or his service connected PTSD but he is also claiming that the sleep apnea is directly related to active service. The examiner indicated that it is less likely than not that sleep apnea is directly related to active service because there was no medical evidence in the service treatment records to indicate that this Veteran had sleep apnea while he was on active duty. In June 2013, a VA examiner provided additional clarification on to the previous opinion rendered. The file was reviewed and the examiner opined that sleep apnea is less likely than not (less than 50 percent probability) caused by or aggravated by either or both the service-connected diabetes mellitus and PTSD. It was stated he knew of no scientific information that represents a consensus medical opinion that sleep apnea is permanently worsened beyond natural progression of the disorder, by either or both, the service-connected diabetes mellitus and PTSD. The physician further opined that sleep apnea was less likely than not (less than 50 percent probability) incurred in or aggravated by service. It was noted that the Veteran's competent statements noted in the behavioral sleep medicine initial comprehensive visit on July 17, 2008 had been reviewed and that there is no evidence based upon the Veteran's statements that the pattern of sleep disturbance consistent with sleep apnea had started, but rather a generalized sleep disturbance pattern that was associated with working the night shift started in 1969. Discussion The Board finds that the Veteran's claim for service connection for sleep apnea cannot be granted. The Board notes that the evidence shows that the Veteran was not treated in service for any sleep problems. However, he has a current diagnosis of sleep apnea, and further he is service-connected for diabetes and PTSD. The claims file does not contain competent evidence showing that the Veteran has sleep apnea that was incurred in service or caused or aggravated by the Veteran's service-connected diabetes mellitus or PTSD. There is no indication of a sleep complaint until many years after service, and there is no medical evidence associating the current disorder with service. In fact the only evidence in the file regarding the etiology of his sleep apnea is a negative opinion offered by VA examiners. The examiners reviewed the claims file and examined the Veteran. It was found that the sleep apnea was not secondary to the service-connected diabetes mellitus or PTSD and was not aggravated by the disorders and is not related to service. The opinions offered are supported by rationale and stand uncontradicted in the record. The claim based on the evidence in the file must be denied as a medical nexus has not been found. As noted above, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, the Veteran is not competent to make a medical determination regarding the etiology of his sleep apnea. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Therefore, although the statements of the Veteran in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a diagnosis or a medical nexus between the disorder and the Veteran's period of service or his service-connected diabetes or PTSD. Further, to the extent that the Veteran's statements and the lay statement of his friend were offered in this case as evidence of "continuity of symptomatology" the Board notes that "continuity of symptomatology" is "an alternative route for proving service connection for chronic diseases" which are specifically listed under section 3.309(a) of VA regulations. Walker, 708 F.3d at 1339. Sleep apnea is not one of the chronic conditions that is listed under that section, and therefore that alternative route to establishing service connection does not apply in this case to this claim. Nevertheless, when the condition for which service connection is claimed may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In this case, sleep apnea might be the type of condition in some cases which may be capable of lay observation for the purpose of establishing a diagnosis. However, whether the current sleep apnea in this case is the result of service is a medical matter requiring medical evidence for its support and resolution because it may require specialized testing. Therefore, medical evidence is required with regard to the nexus or connection of the sleep apnea disability in this case because such a determination is not the kind of matter that lay evidence is competent to address. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In light of the above discussion, the Board must conclude that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea, and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus and/or PTSD is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs