Citation Nr: 1335382 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-46 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1986 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas denying service connection for sleep apnea. The Veteran testified at a March 2012 Travel Board Hearing held before the undersigned Veterans Law Judge at the Waco RO. A transcript of the hearing is of record. In deciding this appeal, the Board has reviewed the Veteran's electronic ("Virtual VA") file, in addition to his physical claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are additional copies of February 2006 VA examinations, unrelated to current appeal, in Virtual VA. There are no records for this Veteran in VBMS. The Veteran reported at his March 2012 Travel Board Hearing that he cannot get a job due to Federal Aviation Administration restrictions on pilots with sleep problems. It appears that the Veteran is raising the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The issue of TDIU 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. FINDING OF FACT Sleep apnea had its onset during service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Procedural Duties, the Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159 and 3.326(a). In the decision below, the Board grants service connection for sleep apnea. In light of this favorable decision, the Board finds that all notification and development action necessary to fairly adjudicate the appeal without prejudice have been accomplished. The Merits of the Claim The Veteran seeks service connection for sleep apnea based on in-service onset. Specifically, he contends that his sleep apnea began to affect his health and career around 1996. He reports that he got married in June 1996, and his wife brought the symptoms to his attention. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the criteria for service connection have been met and the appeal will be allowed. In order to establish entitlement to service connection for any disability on a direct basis, the record must contain evidence of (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Board will address each of the three elements of direct service connection in turn. Initially, the Veteran's private treatment records verify his current diagnosis for obstructive sleep apnea. Dr. V. P. of Dallas Pulmonology Associates diagnosed obstructive sleep apnea based on an April 2009 sleep study, and prescribed the use of a C-PAP machine in May 2009. Therefore the Veteran has a current disability, and has satisfied the first element of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). Next, the Board must address the element of an in-service event or injury. The Veteran submitted a lay statement with his October 2009 claim, reporting excessively loud snoring and trouble sleeping as early as 1992 or 1993 based on complaints from friends. His statement went on to describe that after his June 1996 marriage, his wife repeated the complaints of his friends as to snoring, and further noted abnormal breathing. The Veteran concluded that he sought occasional treatment for fatigue and headaches, but largely minimized his problem to protect his flight status. The Veteran's wife submitted her own lay statement with the October 2009 claim, describing her first hand experience with the Veteran's snoring and apneic episodes following their June 1996 marriage when she moved to Alaska to live with him. Her statement went on to report that these symptoms have persisted throughout their marriage; and listed additional early symptoms such as headaches, morning fatigue, and general malaise. She finally recalled forcing him to seek treatment in August 1996, shortly after their marriage. The Veteran offered further lay testimony at a March 2012 Travel Board Hearing. He repeated the report of his June 1996 marriage, and his wife's immediate notice of his symptoms. He gave more detailed information as to the treatment he sought in service, such as the date of treatment in August 1996 and the name of his prescription sleep aid. Aside from his medical symptoms, the Veteran described the effect of in-service sleep problems on his performance as a pilot in the Air Force; explaining that prior to 1996 his performance had been "very strong," but fell to "average" after 1996. He further reported shifting his career focus to accommodate this condition by switching from the role of a combat pilot to the role of an instructor, returning to something he could "do in his sleep." The Veteran finally echoed his wife's report of headaches as an early symptom, and described his in-service practice of self treatment for sleep problems and the attendant symptoms with Benadryl and Motrin. The Board finds this testimony both competent and extremely credible. Initially, Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The symptoms of excessively loud snoring, and apneic episodes are readily observable features of sleep apnea, and the Veteran's wife is therefore competent to testify as to these symptoms. Headaches and fatigue are also observable symptoms, and the Veteran is similarly competent to report them. Further, lay testimony as to treatment is competent as a factual matter, with first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran's report of in-service self treatment with Benadryl and Motrin, and August 1996 prescription treatment is therefore also competent. To give this evidence all due consideration, the Board must analyze its credibility and probative value, and account for the evidence it finds persuasive or unpersuasive. Id. at 367. In the evaluation of the evidence, VA adjudicators may properly consider internal inconsistencies, facial implausibility, and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). As laid out above, the Veteran's lay statement, his wife's lay statement, and his Travel Board Hearing testimony are all consistent with each other. Further, this lay testimony is also consistent with the other evidence of record. The Veteran's service treatment records document the treatment he sought in August 1996, and the prescription for Restoril as a sleep aid; supporting his Travel Board Hearing testimony as to seeking treatment in August 1996. The place of treatment at that time is listed in the service treatment records as Elmendorf Air Force Base in Alaska, supporting his wife's report of moving to Alaska following their marriage in June 1996 and forcing him to seek medical treatment. The service treatment records finally document that the Veteran had been using Motrin and Benadryl as over-the-counter treatment for headaches and sleep problems in February 1998, July 1999, August 1999, August 2001, January 2005, and May 2005. The Veteran's service personnel records are not in the claims file. However, his DD 214 documents eight years as a combat pilot, instructor training in October 1987 and February 1988, and ten years as an instructor. The Veteran's flight status in his service treatment records indicates that his years as an active combat pilot predated his years as an instructor. Together, these service records support his hearing testimony that he returned to a less stressful career path as an instructor based on his training as an instructor in 1987 and 1988, without service as an instructor until the last 10 years of his Air Force career from 1996 to 2006. The Board finds the lay testimony of both the Veteran and his wife extremely credible as to the in-service onset for the symptoms of sleep apnea. As mentioned above, lay evidence may demonstrate the presence of any of the elements for service connection. Davidson, 581 F.3d at 1316. Therefore the evidence of record supports a finding that the Veteran's sleep apnea had its onset in service, and this evidence satisfies the second part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). The remaining question is whether the evidence of record shows that the Veteran's current diagnosis for sleep apnea is related to the in-service symptoms of sleep apnea established above. The Veteran attended a VA examination in December 2009, but the examiner was unable to offer an opinion on the possibility of service connection for sleep apnea without resorting to mere speculation. The Veteran also submitted an August 2009 medical statement in support of his claim from Dr. V.P. of Dallas Pulmonology Associates. Therefore, there is conflicting medical evidence on this element of service connection which must be weighed. The Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Evans v. West, 12 Vet. App. 22, 30 (1998). Here the December 2009 VA examiner reviewed the claims file. However, it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion, not the mere fact that the claims file was reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The December 2009 VA examiner's review of the claims file yielded a discussion of "only one noted visit" for in-service treatment of trouble sleeping. The service treatment records not only include the August 1996 treatment with the prescription for Restoril as a sleep aid cited by the December 2009 VA examiner; but also show a July 1999 complaint of not sleeping well, and a February 1998 entry showing the Veteran's use of Benadryl as a sleep aid. Medical opinions based upon inaccurate factual premises are entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The December 2009 VA examiner relied on the inaccurate medical history of just one in-service instance of trouble sleeping to reach his conclusion, rendering his opinion to be of no probative value. The VA examiner also failed to consider or discuss the Veteran's lay testimony as to headaches as an early symptom of sleep apnea, which is supported by the service treatment records as reviewed above. The VA examiner finally discussed a lack of apneic episodes based on the Veteran's wife's report of the symptoms, yet her lay statement clearly describes apneic episodes. The December 2009 VA examiner's opinion impermissibly ignored the lay assertions of the Veteran and his wife's as to the in-service onset for the symptoms of sleep apnea. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). This further adds to the inadequacy of the December 2009 VA examiner's opinion. Finally, the VA examiner refused to offer any opinion without resorting to mere speculation. The Secretary must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." Nieves-Rodriguez, 22 Vet. App. at 302. It must be clear in the examiner's statements that he has indeed considered "all procurable and assembled data." Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As discussed above, the December 2009 VA examiner's opinion, cannot be said to have been based on consideration of "all procurable and assembled data," given his disregard for the credible lay assertions and failure to fully review the service treatment records. Therefore, the record leaves this issue in doubt, and the Board cannot rely on the December 2009 VA examiner's opinion. Dr. V.P. indicated in his August 2009 medical nexus statement in support of the Veteran's claim that he had reviewed the Veteran's service treatment records. An examination is adequate where it is based upon consideration of the Veteran's prior medical history and describes the disability in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board highlights that Dr. V.P's opinion is supported by the Veteran's lay testimony and the service treatment records, as discussed above, while the December 2009 VA examiner's opinion is not. The Board further notes that Dr. V.P. is a pulmonologist, certified by the American Board of Sleep Medicine; while the December 2009 VA examiner specializes in general family medicine. The Board must consider the level of training, education, and experience of the person conducting the examination as a factor considered in assigning weight to the report. Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007). For this reason, among the other reasons listed above, the Board finds that Dr. V.P.'s August 2009 private medical nexus opinion must weigh more heavily than the December 2009 VA examiner's opinion. The Board finds that the August 2009 private opinion is the most probative evidence on the element of a medical nexus between the in-service onset for the symptoms of sleep apnea, and the current diagnosis for sleep apnea. Therefore, the evidence of record supports a finding that the Veteran's sleep apnea is related to an in-service injury, event, or disease; and satisfies the third part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). Given the competent medical evidence as to a current diagnosis of sleep apnea, the competent and credible lay evidence as to in-service onset for the symptoms of sleep apnea, and favorable medical nexus opinion; Board concludes that the evidence supports the award of service connection for sleep apnea. ORDER Service connection for sleep apnea is granted. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs