Citation Nr: 1337836 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-05 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision that denied service connection for sleep apnea. In an April 2012 decision, the Board remanded this issue for additional development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. FINDING OF FACT The Veteran's sleep apnea was not incurred in service and is not shown to have been caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW A sleep apnea disability was not incurred in or aggravated by service, or proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in a January 2008 letter, prior to the date of the issuance of the appealed June 2008 rating decision. The January 2008 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter 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). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the report of April 2007 and March 2009 VA examinations and the reports of May 2008 and April 2012 VA addendum opinions. The reports of the April 2012 VA addendum opinions reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the April 2012 VA addendum opinions are sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In an aggravation scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred. 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran seeks service connection for sleep apnea and has asserted that the claimed disability is secondary to his service-connected disabilities-including diabetes mellitus, hypertension, and reactive airway disease. Service treatment records do not reflect any findings or complaints of sleep apnea or a sleeping disorder. The post-service treatment records first show an assessment of sleep apnea in 2007. The Veteran underwent a VA examination in April 2007 which was conducted by a nurse practitioner. The report of an April 2007 VA examination includes an opinion by the nurse practitioner that the Veteran's sleep apnea was as least as likely as not caused by or a result of diabetes mellitus. In support of the opinion, the nurse practitioner indicated that a review of literature revealed an increased incidence of both obstructive and central sleep apnea associated with hyperglycemia and diabetes mellitus. As the RO considered the April 2007 opinion not acceptable for rating purposes because it was not rendered by a VA physician, an addendum was provided by a board-certified VA sleep specialist and pulmonologist in May 2008. Following review of the claims file, the VA physician disagreed with the conclusion that the Veteran's sleep apnea was caused by diabetes mellitus. The VA physician indicated that there is a well recognized association between sleep apnea and diabetes mellitus, and that each are separately associated with increased obesity; but that the direction of causation is "the other way around." The VA physician noted that the physiologic stress response to apneas acted to counter the effects of insulin on blood sugar, thus raising blood sugar; and that there is evidence that treatment of sleep apnea improves blood sugar control. However, the VA physician knew of no evidence that treatment of diabetes mellitus improves the severity of sleep apnea. Following examination in March 2009, a nurse practitioner opined that the Veteran's sleep apnea was not caused by or a result of hypertension; and commented that sleep apnea had a positive relationship with obesity, which may be the primary etiology of the Veteran's sleep apnea. The nurse practitioner also opined that the Veteran's sleep apnea was not caused by or a result of reactive airway disease. Per the April 2012 Board remand instructions, a VA sleep medicine specialist conducted a records review in April 2012. The examiner opined that obstructive sleep apnea is not caused or aggravated by diabetes mellitus. There was a well recognized association between obstructive sleep apnea and diabetes mellitus in that both are separately exacerbated by increased obesity. In addition sleep apnea exacerbates diabetes mellitus because sleep apnea causes frequent disturbances due to breathing difficulty. These arousals were measurably accompanied by a physiologic stress response as seen with a rise in heart rate, blood pressure, vascular restriction and elevated adrenaline blood levels. It was this physiologic stress response to apneas that acted to counter the effects of insulin on blood sugar, thus raising blood sugar. In support of this, there was evidence that treatment of apnea improved blood sugar control, especially in the morning. The examiner was not aware of any evidence that the treatment of diabetes improved sleep apnea severity. He did not believe that diabetes mellitus caused obesity however he deferred this determination to a specialist in endocrinology. The examiner also opined that hypertension did not cause or exacerbate obstructive sleep apnea. There was a well recognized association with obstructive sleep apnea and hypertension in that obstructive sleep apnea exacerbated hypertension and treatment of even mild obstructive sleep apnea could improve blood pressure control. He was aware of no evidence that hypertension caused or exacerbated obstructive sleep apnea. The examiner also determined that restrictive airway disease did not cause or exacerbate obstructive sleep apnea. There was an association with restrictive airway disease and obstructive sleep apnea in that patients with obstructive sleep apnea have an increase in respiratory symptoms, especially during the night, and may show evidence of airway restrictivity. The mechanism by which obstructive sleep apnea exacerbates asthma appeared to be that during upper airway obstruction from obstructive sleep apnea there was an increase in breathing effort which resulted in a reduction in intra-thoracic pressure which can be much greater than that of normal breathing. There was some evidence that patients with obstructive sleep apnea and asthma have improved airway reactivity and respiratory symptoms after treatment of the obstructive sleep apnea. The examiner was unaware of any evidence that asthma or chronic obstructive pulmonary disease (COPD) caused or exacerbated obstructive sleep apnea. The examiner also reviewed the other service connected disabilities and determined that none were related to sleep apnea. The examiner noted that obesity was one of the major risk factors of obstructive sleep apnea. Other major risk factors included tongue size, soft palate length and width of the uvula and tonsil size. The Veteran was examined at a sleep clinic on October 2009 and was found to have a Malampati Type IV airway which was the worst degree of obstruction. The examiner reviewed the Veteran's current problem list and medications and did not see any other causative factors. Obesity was not a risk factor in about 1/3 of patients with obstructive sleep apnea and it was generally believed that the greater the obesity the incidence of obstructive sleep apnea. The Veteran currently had stage 1. Based on the mild degree of obesity and the presence of a Malampati type IV airway, the examiner opined that the Veteran's current sleep apnea was aggravated by obesity but not entirely caused by obesity. In April 2012, a VA endocrinologist provided a VA addendum opinion regarding whether diabetes causes obesity. The examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea was proximately due to or the result of a service-connected condition. The examiner noted that the Veteran had claimed that his service-connected diabetes mellitus had caused his obesity. A review of the records revealed that the first diagnosis of diabetes mellitus was in August 1990 when the Veteran weighed 192 pounds with a body mass index of 28.9. Prior to that, his record indicated that in March 1983 he weighed 171 pounds with a body mass index of 29.8 and he was discharged from active duty with a weight of 223 pounds and a body mass index of 34.9. The examiner noted that it was generally accepted that the obesity plays a causative role in the onset of diabetes mellitus type II along with other environmental and genetic factors and not the other way around. At the onset of his type II diabetes mellitus, he had gained some 20 pounds. The examiner also noted that obesity was due to consumption of excessive calories and that there was no current literature that would support the contention that diabetes type II per se causes obesity. The examiner concluded that it was less likely than not that the Veteran's obesity was due to his service connected diabetes mellitus. In an Appellant's Brief dated in October 2013, the Veteran's accredited representative cited to treatise evidence to support the notion that there is increasing evidence linking sleep apnea to poor control of diabetes and hypertension. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for obstructive sleep apnea as secondary to service-connected disabilities is not warranted. As noted above, there is a current diagnosis of obstructive sleep apnea; hence, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board finds that the weight of the evidence is against a finding that the Veteran's current obstructive sleep apnea disability is etiologically related to the Veteran's military service on a direct basis. As noted above, the Veteran's service treatment records are negative for complaints or treatments related to sleep apnea and the first diagnosis of sleep apnea occurred in 2007, approximately 16 years after his discharge from service. Additionally, in this case, there is no medical opinion of record showing a relationship between any current obstructive sleep apnea and the Veteran's military service. The Board finds that the competent evidence of record, while showing the currently diagnosed disability of obstructive sleep apnea, does not demonstrate that obstructive sleep apnea is related to the Veteran's service on a direct basis. Regarding service connection on a secondary basis, the Veteran again claims that his current obstructive sleep apnea is secondary to his service-connected disabilities-including diabetes mellitus, hypertension, and reactive airway disease. The Board notes that there are conflicting medical opinions of record addressing the possibility of such a relationship. On VA examination in April 2007, a nurse practitioner opined that the Veteran's sleep apnea was as least as likely as not caused by or a result of diabetes mellitus. Conversely, the VA sleep specialist and pulmonologist in May 2008 disagreed with this assessment while a VA sleep medicine specialist in April 2012 opined that the Veteran's obstructive sleep apnea was not caused or aggravated by his diabetes mellitus. Instead, the Veteran's current sleep apnea was aggravated by obesity. Additionally, in April 2012, a VA endocrinologist determined that it was less likely than not that the Veteran's obesity was due to his service connected diabetes mellitus. In this regard, the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, the Board finds that the April 2012 opinions of the VA reviewers to be the most probative. These opinions are significantly more thorough, and contain a far more detailed rationale, than the favorable April 2007 VA nurse practitioner's opinion. The Board also places greater probative value on the opinions contained in the April 2012 reports because the VA examiners are medical doctors, while the examiner who offered the favorable opinion in April 2007 is a nurse practitioner. See Owens; supra; and Guerrieri; supra. The April 2012 reviewers also specifically addressed the favorable April 2007 VA nurse practitioner's opinion and determined that obstructive sleep apnea is not caused or aggravated by diabetes mellitus and that the Veteran's obesity was not due to his service connected diabetes mellitus. In making these determinations, the April 2012 VA sleep specialist specifically noted that while there was a recognized association between obstructive sleep apnea and diabetes mellitus in that both are separately exacerbated by increased obesity, sleep apnea is not caused or aggravated by diabetes mellitus. The April 2012 VA sleep specialist also noted that the Veteran's current sleep apnea was aggravated by obesity but not entirely caused by obesity while the April 2012 VA endocrinologist determined that this obesity was not a result of diabetes. The April 2012 VA examiners also provided a rationale for their conclusions when determining that it was less likely than not that the Veteran's service-connected diabetes, hypertension and restrictive airway disease caused or aggravated the obstructive sleep apnea disability and that the Veteran's obesity was not a result of his service-connected diabetes. For these reasons the Board finds the April 2012 VA examiners' opinions to be the most probative regarding the issue of whether the Veteran's current obstructive sleep apnea disability is secondary to his service-connected disabilities. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence.") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, supra, (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Based on the foregoing, the Board has placed greater probative weight on the April 2012 VA opinions. Given that the most probative opinion is against a finding of a relationship between an obstructive sleep apnea disability and his service, to include as secondary to his service-connected disabilities, the Board finds that service connection is not warranted. In reaching this conclusion, the Board has considered the lay evidence offered by the Veteran to VA. This includes his statements in which he asserted his belief that his claimed sleep apnea disability is related to his service-connected disabilities. To the extent that the Veteran himself contends that a medical relationship exists between his current claimed disability and service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's claimed sleep apnea disability and service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current sleep apnea disability and his service, to include a service-connected disability. Finally, the Board has also considered the treatise evidence discussed by the Veteran's accredited representative. The United States Court of Appeals for Veterans Claims has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). Here, the citation provided by the Veteran's representative from this treatise evidence is far to brief and too general in nature to be of significant probative value. As noted, the April 2012 VA examiners discussed in detail the associations between the Veteran's various disabilities as demonstrated by the medical literature, and explained why the nature of such associations rendered it unlikely that the claimed sleep apnea was unlikely to be caused or aggravated by his service-connected disorders. In sum, the Board finds that service connection for a sleep apnea disability as secondary to a service-connected disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for sleep apnea, to include as secondary to his service-connected disabilities, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs