Citation Nr: 1334236	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO. 10-17 378	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel






INTRODUCTION

The Veteran served on active duty from June 1980 to December 1980, from January 1991 to July 1991, and from January 2003 to January 2004.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In that decision, the RO denied service connection for sleep apnea.

The Virtual VA and VBMS electronic claims files associated with the Veteran's claims have been reviewed and all relevant evidence therein taken into account.


FINDING OF FACT

The preponderance of the evidence is against a finding that the Veteran's sleep apnea is causally related to an in-service disease, injury, or event.


CONCLUSION OF LAW

The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in November 2008, prior to the initial unfavorable adjudication in December 2008. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with a VA examination in November 2008 and with a VA Gulf War Guidelines examination in June 2010. Both examinations were adequate because the examiners considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examinations, conducted thorough medical examinations of the Veteran, and provided sufficient supporting rationales for their opinions. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claim for service connection for sleep apnea. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Service Connection

A. Direct Service Connection

Generally, to establish direct service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence is a fact that can be considered and weighed against a Veteran's lay statements. Id.

The Veteran contends that he has sleep apnea as a result of his military service. As explained below, the preponderance of the evidence is against finding that the Veteran's sleep apnea is causally related to an in-service event or injury. The elements of direct service connection will be addressed in turn.

First, there is sufficient evidence to indicate the Veteran has a current disability. The Veteran was provided with a polysomnograph in August 2008 and, based on the results, was diagnosed with moderate obstructive sleep apnea. The examiners were competent and there is nothing in the claims file to indicate that the diagnosis is not credible. Therefore, the Board finds that the Veteran has a current disability.

Second, the preponderance of the evidence does not support a finding of an in-service event or injury. The Veteran's service treatment records are silent as to any complaints of or treatment for sleep apnea or its clinical signs, such as snoring, daytime somnolence, and disturbed sleep. While some sleep-related problems are noted, these problems have to do with complaints of insomnia, recurring nightmares, anxiety, or depressed mood, which interfered with the Veteran's sleep. As such, the service treatment records do not indicate an in-service injury or event.

The Veteran was provided with a VA examination in November 2008 in which the examiner found that there was not an in-service event or injury. The opinion was based on the fact that the Veteran's service treatment records did not contain a diagnosis of sleep apnea or any signs of the main clinical features of sleep apnea, such as loud snoring, daytime somnolence, and unrestorative sleep. The examiner noted some complaints of sleep problems, but also noted they concerned recurring nightmares and insomnia, not symptoms of sleep apnea. The opinion was offered by a competent medical professional who relied on accurate facts, applied accepted medical principles to those facts, and provided a sufficient supporting rationale. See Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312. No other medical evidence relevant to an in-service injury or event is present. As such, the VA opinion is highly probative of this element. 

Turning to the lay evidence, the Veteran stated that his sleep apnea began during his active duty service, and that his wife began to notice his snoring and shortness of breath in 2003. While the Veteran and his wife are competent to report the symptoms of sleep apnea, they are not competent to diagnose him with sleep apnea, as that requires medical expertise. Jandreau, 492 F.3d at 1377. No further lay evidence has been submitted in support of an in-service injury or event.

In this case, the Veteran's statements conflict with the medical evidence of record. The service treatment records contain no mention of a diagnosis or symptoms indicating sleep apnea, despite in-service complaints of other sleep problems. While a lack of contemporaneous evidence is not dispositive, it can be weighed against the Veteran's lay statements. Buchanan, 451 F.3d at 1336-37. Here, the lack of medical evidence indicating sleep apnea symptoms, particularly in light of other complaints of sleep problems while in service, casts doubt on the Veteran's statements concerning an in-service event or injury. As a result, the Board finds the Veteran's lay statements to be not credible, and assigns them limited weight. Due to the lack of in-service treatment, the limited weight of the Veteran's statements, and the high probative value of the VA examination, the preponderance of the evidence is against a finding of an in-service event or injury.

Finally, even assuming the presence of an in-service event or injury, the preponderance of the evidence is against a finding that the Veteran's sleep apnea is causally linked to his service. As mentioned above, the November 2008 VA examiner found that the Veteran's sleep apnea was not causally related to his service. The examiner explained that while the Veteran was evaluated for sleep problems in 2003, the records are silent for the clinical symptoms of sleep apnea, including loud snoring, disruptive sleep breathing, unrestorative sleep, and daytime somnolence, as well as for an actual diagnosis of sleep apnea. The same was true of evaluations in 1991 and 1992. The examiner also noted that following the 2003 evaluation, there was a five year gap before the Veteran was formally diagnosed with sleep apnea in 2008. The examination is both competent and credible. See Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312. The 2003 physician's evaluation concerned complaints of depression and anxiety following the Veteran's service in Iraq. No other medical evidence has been submitted on the issue of nexus. Therefore, the VA examination is highly probative on the issue of nexus.

With respect to the lay evidence of nexus, the Veteran stated that his wife noticed his shortness of breath and snoring beginning in 2003, which she is competent to report. Jandreau, 492 F.3d at 1377; Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). She is also competent to report that the symptoms have continued since then. Id. Although competent to report persistent symptoms, the Veteran and his wife are not competent to state that sleep apnea specifically has been persistent since service, as complex medical testing and medical expertise are required in order to render such an opinion. Jandreau, 492 F.3d at 1377. In the same vein, neither are competent to state that any persistent symptoms since service are attributable to the Veteran's current diagnosis of sleep apnea. Id. The Veteran also stated during his June 2010 Gulf War Examination that he was not diagnosed until 2008 because he was not aware he had a medical condition.

While the lay statements are competent regarding persistent symptoms, they again are inconsistent with the medical evidence of record. The Veteran's post-service treatment records from January 2004 to January 2008 are negative for any respiratory or cardiovascular problems. This is despite the fact that symptoms such as shortness of breath, dyspnea on exertion, and paroxysmal nocturnal dyspnea are all specifically listed as being checked for as part of the primary care follow-up examinations. There are no other notations of complaints of loud snoring, daytime somnolence, or other sleep apnea symptoms. Further, the Veteran has complained of other sleep problems, such as nightmares and insomnia, but did not mention any sleep apnea symptoms.

A lack of contemporaneous evidence and periods without complaint can be considered in determining the credibility of lay statements. See Buchanan, 451 F.3d at 1336-37; Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Here, the absence of complaints of sleep apnea or its symptoms for four years after service and the inconsistency of the Veteran's statements with the medical evidence support a finding that his lay statements are not credible. While the Veteran stated he did not receive an earlier diagnosis because he was unaware he had a medical condition, that fact would not necessarily preclude the mentioning of pertinent symptoms during an examination, particularly when some of the symptoms, such as nighttime shortness of breath, are specifically checked for during the examination.

As the lay statements are not credible, they are assigned no probative weight. Therefore, the only competent, credible and probative evidence of record on that issue is the November 2008 VA examination. As such, the preponderance of the evidence is against a finding of a nexus. Without an in-service event and a nexus between the current disability and service, a claim for service connection must be denied.

B. Service Connection for Persian Gulf War Veterans

Persian Gulf War Veterans can be eligible for service connection for certain disabilities under 38 C.F.R. § 3.317, if certain criteria are met. Here, the Veteran served on active military duty in the Southwest Theater of Operations during the Persian Gulf War, as evidenced by his Kuwait Liberation Medal and Southwest Asia Service Medal. See id. As such, the Veteran is eligible for service connection if he has an undiagnosed illness or a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. See 38 C.F.R. § 3.317(a)(2)(i). 

However, a June 2010 Gulf War Guidelines examination also determined his condition to be one with a known etiology and clinical diagnosis, and therefore not eligible for service connection under 38 C.F.R. § 3.317. The examination was competent and credible as it applied accepted medical principles to accurate facts and provided a sufficient supporting rationale. See Rodriguez-Nieves 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312. Therefore, despite his qualifying service, the Veteran is not eligible for service connection for sleep apnea as a Persian Gulf War Veteran. 38 C.F.R. § 3.317.

C. Conclusion

Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran's sleep apnea is related to an in-service event or injury. See 38 C.F.R. § 3.303. Further, the Veteran has a condition with a clear and specific etiology and diagnosis, and therefore does not qualify for service connection as a Persian Gulf War Veteran. See 38 C.F.R. § 3.317. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.


ORDER

Entitlement to service connection for sleep apnea is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs