Citation Nr: 1337376 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-06 401A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for sleep apnea, to include as qualifying chronic disability attributable to duty in the Southwest Asia theater of operations during the Persian Gulf War. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to November 1976, from August 1990 to June 1991, and from July 1996 to November 1996. He served in the Southwest Asia theater of operations from September 1990 to May 1991. He also has prior and subsequent service with the U.S. Army Reserve and the Army National Guard, presumably with periods of active duty for training (ACDUTRA) and inactive duty training service (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2011, the Veteran testified during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This case was previously before the Board in October 2011 and April 2013 when the issue on appeal was Remanded for further development and for due process reasons. As was noted in the Introduction section of the October 2011 and April 2013 Board Remands, the issue of entitlement to service connection for a cervical spine disability with scar, to include as secondary to right trapezius strain, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT The preponderance of the evidence of record reflects that the Veteran's obstructive sleep apnea, a diagnosed disorder, did not have its onset during military service and is not otherwise etiologically related thereto, nor has it been caused or aggravated by the service-connected PTSD. CONCLUSION OF LAW The criteria to establish service connection for sleep apnea, to include as due to an undiagnosed illness and as secondary to service-connected PTSD are not met. 38 U.S.C.A. §§ 1117, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has not alleged any prejudicial or harmful error in VCAA notice. In this case, prior to the initial adjudication of the claim, the RO provided notice to the Veteran in a letter dated July 2004 that explained what information and evidence was needed to substantiate the claim for service connection for sleep apnea, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. Letters mailed in March 2006 and September 2008 also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the Veteran was not provided complete notice with respect to his claim until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Moreover, the Veteran through his representative demonstrated an understanding of the evidence needed to establish entitlement to service connection for sleep apnea during the May 2011 Board hearing and in written Informal Hearing Presentations in January and September 2013. See Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that the appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim). Regarding VA's statutory duty to assist in claims development, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim. Pertinent medical evidence associated with the claims files consists of service and VA treatment records and private treatment records. While a substantial amount of the Veteran's service personnel records have been associated with the claims file, the Board observes that service personnel records relevant to the Veteran's prior claim for service connection for a right knee disability are not of record. While these records are not pertinent to the Veteran's current appeal, in July 2005 VA issued a Formal Finding Memorandum which indicated that the respective SPRs were unavailable for review. There is a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as this, in which records are presumed to have been lost or destroyed while the file was in the possession of the government. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); see also O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran was notified of these findings. Moreover, the Board's analysis of the Veteran's claim has been undertaken with this duty in mind. Pursuant to the Board's October 2011, the Veteran was VA sleep apnea Disability Benefits Questionnaire (DBQ) examination in December 2011 at which time the examiner opined that the it is less than not that the Veteran's obstructive sleep apnea was incurred in or caused by his service. However, as the examiner failed to acknowledge lay statements from the Veteran's spouse and specific STRs and private treatment records or provide an opinion as to whether the Veteran's service-connected PTSD aggravated his sleep apnea, the Board again remanded the claim in April 2013 for an additional opinion. Accordingly, in June 2013 the December 2011 VA examiner provided an addendum at which time the examiner further addressed the lay statements and medical evidence of record and opined that the Veteran's obstructive sleep apnea was not aggravated by his PTSD or due to environmental exposure. The VA examiner's opinions involved a thorough review of the claims file, including the service treatment records and extensive post-service treatment records, lay statements, and were supported by sufficient rationale. Accordingly, the Board finds that VA substantially complied with the Board's remand directives in further developing the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). For those reasons, the Board finds that VA substantially complied with the Board's remand directives in further developing the Veteran's claim. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his representative, on his behalf. As noted above, the Veteran was provided with a Board hearing in May 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c) (2) (2013) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above 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. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issue on appeal. The undersigned Veteran's Law Judge elicited testimony regarding the history and etiology of his sleep apnea, to include whether he had any evidence that such disability could be related to his active service. The Veteran's testimony also triggered the Board's decision to Remand the matter to obtain the above referenced addendum. For the above reasons, the Board finds that, consistent with Bryant, VA has complied with the duties set forth in 38 C.F.R. § 3.103 (c) (2) and that the Board can adjudicate the claim based on the current record. It must be noted that neither the Veteran nor his representative have asserted that VA failed to comply with the provisions of 38 C.F.R. § 3.103(c) (2) nor identified any prejudice in the conduct of the Board hearing. Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. Therefore, in view of the foregoing, the Board will proceed with appellate review. II. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of (secondary to) a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may 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) (2013). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Id. Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate. ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). For Veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Under this law and regulation, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011. 38 C.F.R. § 3.317(a)(1). In this case, the Veteran claims that he has sleep apnea that is related to his service. Because the Veteran's current sleep disorder is attributable to a known clinical disorder, obstructive sleep apnea, it is not considered to be an undiagnosed illness and therefore 38 C.F.R. § 3.317 is inapplicable to this case. In his written submissions and testimony the Veteran has asserted that he believes his sleep apnea developed out of his exposure to the toxic environment of the Gulf War and was made worse by his service-connected PTSD. With regard to the merits of the claim, within the October 2011 and April 2013 Board Remands, the Board examined the Veteran's STRs, pertinent treatment records, and May 2011 testimony before the Board. As such, all evidence discussed in both Remands is incorporated herein. In those Remands, the Board observed that any complaints of sleep disturbance is already encompassed and compensated in his service-connected PTSD, which is currently rated as 70 percent disabling. However, the Veteran may still pursue the claim on the basis of direct service connection, to include as due exposure to environmental hazards as a consequence of service in the Southwest theater of operations during the Persian Gulf War. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In May 2011, the Veteran testified that his wife, a nurse, noticed shortly after his return from the Persian Gulf that he stopped breathing at night and she would wake him up to get him breathing again. He testified that he was not treated for sleep apnea during active duty, but that he noticed it after his second period of active service. Pursuant to the Board's November 2011 Remand, the Veteran underwent a VA sleep apnea DBQ examination in December 2011 at which time the examiner diagnosed obstructive sleep apnea which the examiner opined was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. This opinion was based on a multi-pronged rationale: 1) the Veteran had sleep apnea was diagnosed in the mid to late 1990s; 2) the absence of medical evidence that the onset of the condition was during service; 3) the causes/etiologies of sleep apnea include obesity, soft palate abnormalities/crowding and CNS abnormalities, and that based on review of the medical records the Veteran had the first two risk factors; and 4) there is no medically accepted link between Persian Gulf exposure and sleep apnea. As noted in the Introduction, the December 2011 examination report did not acknowledge the lay statements with respect to sleep apnea, as requested in the October 2011 Board remand. Accordingly, the Board remanded the matter in April 2013 remand, and in a June 2013 addendum the December 2011 VA examiner indicated that he reviewed the STRs from 1991, the Veteran's spouse's lay statements, and the 2001 private medical records. The examiner opined that the Veteran's obstructive sleep apnea is less likely as not related to or caused by his time in service including environmental hazards in Southwest Asia. He further opined that his obstructive sleep apnea is less likely as not aggravated by his service-connected PTSD. In the rationale provided, the examiner explained that a diagnosis of OSA (obstructive sleep apnea) can only be made after a sleep study and that the objective criteria necessary for a diagnosis and treatment of OSA were not met until 2000. In addition, the examiner noted that there are numerous other etiologies for the sleep symptoms described in the lay statements which are "completely unrelated to the OSA" and include obesity, soft palate abnormalities/crowing and CNS abnormalities. As previously noted, the examiner again stated that the Veteran has the first two risk factors. In addition, more recent research has also indicated a genetic component as well. Obesity is the main risk factor for OSA and is the main contributing factor for the soft tissue crowding of the upper airway. The examiner explained that the onset of the Veteran's sleep apnea coincided with his well-documented weight gain. He stated that obesity is defined as a BMI of 30 or above and that the Veteran steadily gained weight after service such that by the time his BMI (body mass index) was 30, his sleep apnea had been diagnosed. With regard to the matter of whether the Veteran's service-connected PTSD caused or aggravated is obstructive sleep apnea, the examiner explained that the two disorders are on based on completely different neurologic pathways further supported by the fact that treatment for both conditions never overlapped. Finally, the examiner opined that Southwest Theater environmental exposure has not been found to be an etiology of OSA and that based on review of IOM literature, OSA is not a presumptive condition for these exposures. The Board finds that the claim must be denied. The Veteran was not shown to have sleep apnea during any period of active service. Rather, the earliest post-service medical evidence of any relevant findings is dated in 2000. In this regard, the only competent credible opinion of record is the December 2011 VA examiner report, as supplemented by the June 2013 addendum stating the following: that it is less likely than not that the Veteran's obstructive sleep apnea was incurred in or caused by his service; is not related to or caused by environmental hazards in Southwest Asia; and is less likely as not aggravated by his service-connected PTSD. Rather, the VA examiner related the Veteran's obstructive sleep apnea to his "well-documented weight gain." Put another way, service connection based on the theories of direct onset (38 C.F.R. § 3.303(a)) or secondary service connection (38 C.F.R. § 3.310(a)) is not established. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of sleep apnea and whether this disease is etiologically related to the Veteran's active service or to his service-connected PTSD, 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). Sleep apnea is not the type of condition/disease that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that neurological testing and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms such as episodes during which he would stop breathing and restless sleep, there is no indication that the Veteran is competent to etiologically link any such symptoms to his active service or to his service-connected PTSD. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating endocrine disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Finally, to the extent that the Veteran's wife, a nurses, has related his sleep apnea to his service, her opinion, while possessing medical value based on her expertise, must be recognized as an opinion burdened by inherent and unavoidable conflict of interest. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addition, while the Board acknowledges that she is a nurse, the evidence does not indicate that she has specific training necessary to provide a medical opinion regarding the relationship between the Veteran's sleep apnea and his active military service. Any such opinion is also heavily outweighed by the negative VA examiner's opinions, which were rendered by a medical expert. Accordingly, the Board accords any such opinion limited probative value. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea on either a direct or secondary basis. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for sleep apnea is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs