Citation Nr: 1336506 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 11-32 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1986 until November 1989 and from December 2003 until March 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2008 and June 2010, the Veteran raised a claim for entitlement to service connection for continuous coughing and runny nose brought about by exposure to sand and dust storms, to include as due to an undiagnosed illness. Although this issue has been raised by the record, it 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 The most probative evidence of record fails to establish that it is at least as likely as not that the Veteran has sleep apnea that is attributable to active military service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An April 2010 VA letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson at 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, private treatment records, and VA treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). A VA examination was conducted in January 2013. The Veteran has not argued, and the record does not reflect, that the examination was inadequate for purposes of determining entitlement to service connection for sleep apnea. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner reviewed the claims folder, conducted a physical examination of the Veteran, and concluded that no pathology was found to support a diagnosis of sleep apnea. There is no indication in the record that any evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Law and Regulations Service connection will be granted if it is shown that the veteran suffers from a 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 the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection on a direct basis, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises, and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once lay evidence is found to be competent, the Board has a duty to address the credibility and weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Facts The Veteran contends that he has sleep apnea that was caused by service, and that he has continued to experience sleep apnea since that time. Service records do not indicate any complaint or treatment for any sleep disorder. Notably, in the post-deployment health assessment dated February 2005, the Veteran indicated that he did not still feel tired after sleeping. VA Medical Center (VAMC) treatment records dated from January 2006 to April 2010 reveal that, in January 2010, the Veteran noted possible sleep apnea and asked for a sleep study. The Veteran's physician entered a consult request for a sleep laboratory with a provisional diagnosis for "possible sleep apnea." In March 2010 the sleep study was performed. The study was 7.3 hours in duration. The report noted ten hypopneas and no apneas. For the impression, the physician did not mark obstructive sleep apnea. Instead, he marked "other" and wrote in "snoring." The plan advised by the physician was weight control, not to drive or engage in hazardous activity while sleepy, and to avoid or minimize the use of alcohol, sedatives, hypnotics, muscle relaxants, and narcotics. The physician noted that no follow-up return was necessary. An internal VA document, summarizing outpatient treatments, notes a diagnosis of "unspecified sleep apnea" in March of 2010, but this is contradicted by the results of the study itself, and is likely only indicative of the provisional diagnosis for possible sleep apnea that accompanied the order for a sleep study. No other diagnosis related to sleep apnea is present in the VA treatment records. The Veteran's April 2010 claim for sleep apnea indicates that his wife told him that he had started to snore more when he was home on leave in 2004, and that she also told him he started to toss and turn after he returned home in 2005. The Veteran wrote that he also noticed a different sleep pattern, but that he had brushed it off. The Veteran stated that he was asked to do a sleep study, and was told that he did suffer from a mild sleep disorder. In an April 2010 statement, the Veteran wrote that he believed his sleep problems started around the time of his deployment in 2004. He stated that there were no set sleep patterns, and that he was often unable to sleep due to noises such as other soldiers snoring or entering and exiting the area. He explained that while in Kuwait they slept in tents on cots with noises such as generators running all day and all night. According to the Veteran, he was told that a change of sleep pattern was to be expected, so he did not think much of changes to his sleeping patterns. He was told by his wife that he was tossing, turning, snoring, and talking in his sleep. He reported the use of over-the-counter sleep aids such as nose strips and sleep aid pills. The Veteran stated that his doctor advised a sleep study and told the Veteran that he had a mild disorder. The Veteran's notice of disagreement (NOD), received in August 2010, stated that during his tour he was responsible for a platoon of soldiers and their equipment, which caused him great stress and worry about their safety, leading to sleepless nights and days. The Veteran noted that his spouse initially thought his tossing and turning, talking in his sleep, snoring, and sweating were part of readjustment. The Veteran also wrote that the sleep study from March 2010 confirmed that he had a disorder. In November 2011, the Veteran's wife submitted a lay statement in which she asserted that the Veteran did not snore prior to his second period of active service, but that when he came home on leave for two weeks in 2004 she noticed that he would snore loudly and then stop breathing before gasping for air. She wrote that sometimes the Veteran sounded as if he was choking and would wake up, and other times she would wake him up for fear of his not breathing. She described the symptoms as becoming worse over time until the Veteran agreed to be tested for sleep apnea in 2010. The Veteran corroborated his wife's assertions in his own statement in November 2011, and also noted daytime sleepiness and sweating or chest pain while sleeping in service and worsening since service. A VA examination was held in January 2013. The examiner noted the March 2010 sleep study that was negative for obstructive sleep apnea, and stated that "[f]or the claimed condition of sleep apnea, no pathology was found to support a diagnosis." The Veteran had a private sleep study test performed in June 2013. The report stated that the Veteran "slept poorly and the study failed to demonstrate significant obstructive sleep apnea." More specifically, "[t]here was just one respiratory event during the night and no periodic limb movements." The report noted that the Veteran did have an "elevated Epworth Sleepiness Scale score and as such it is possible that because of the poor quality sleep the study is underestimating his sleep apnea." The report went on to recommend that the Veteran have an out of center sleep test to confirm the study findings, noting that the Veteran stated that he "is going to think about it and let [the center] know what he decides." The diagnosis was suspected obstructive sleep apnea. In an August 2013 brief accompanying the June 2013 sleep study report, the Veteran's representative wrote that the Veteran "has been allowed an extension of time to provide evidence in support of his claim - this extension expires shortly, before action can be taken to seek the recommended new study. The [Veteran] asks that the Board remand this matter with instructions that once the outside sleep study is performed that an opinion be obtained as to whether the in-service symptoms indicate that a current sleep disorder, if diagnosed, was also present in service." In August 2013, the Board also received a newspaper article noting that Veterans are four times more likely to suffer from sleep apnea than civilians are. Analysis To prevail on a claim for service connection, there must be evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). In this case, other than the Veteran and his wife's lay statements, there is no evidence of sleep apnea. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), diagnosing sleep apnea falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Neither the Veteran nor his wife has been shown to have had the requisite medical training to render such a diagnosis. The Veteran's wife is competent to report that she has observed symptoms of sleep apnea, such as the Veteran snoring, tossing and turning, and gasping in his sleep, but the probative value of her statements is far outweighed by the medical evidence of record, which shows that the Veteran has not been diagnosed with sleep apnea, in spite of undergoing two different sleep studies. The Veteran is competent to testify as to symptoms such as daytime fatigue; however, he is also not competent to diagnose sleep apnea. The Board also notes that the Veteran specifically denied such symptoms on his 2005 post-deployment questionnaire. For these reasons, the statements of the Veteran and his wife as to a diagnosis of sleep apnea are of little probative value. The Board acknowledges that the June 2013 sleep study report indicated that the Veteran's poor sleep could have resulted in an underestimation of sleep apnea, and suggested another study to confirm the report's findings. However, the Veteran underwent another sleep study - the March 2010 sleep study requested by his treating physician - that also reported no sleep apnea. The March 2010 study did not contain any indication of inadequacy. Although the Veteran's representative has requested that the Board remand to allow yet another sleep study in the hopes of obtaining a diagnosis, the Veteran has had ample opportunity to undergo sleep studies, and no sleep apnea diagnosis has been forthcoming. The Veteran reported in his April 2010 statement, April 2010 claim, and August 2010 NOD that his VA treating physician had told him he had a sleep disorder. While the Veteran is competent to report a contemporaneous medical diagnosis, see Jandreau, supra, the VA treatment records indicate that the only sleep apnea diagnosis was merely provisional for the purposes of requesting the sleep study. As discussed above, the sleep study found no sleep apnea. The Veteran's statements are outweighed by the actual sleep study report, which contains an impression of "other: snoring," and not sleep apnea. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for sleep apnea is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (b), 38 C.F.R. § 3.102. ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ U. R. Powell Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs