Citation Nr: 1339043 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-12 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In June 2012, the Board denied the Veteran's claim for service connection of obstructive sleep apnea, including as secondary to service-connected PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, in February 2013, the Veteran's attorney and VA's Office of General Counsel filed a Joint Motion for Remand. In a February 2013 Order, the Court granted the Joint Motion, vacating the Board's June 2012 decision to the extent that it denied service connection for obstructive sleep apnea, including as secondary to service-connected PTSD, and remanded that matter to the Board. In June 2013, the Board remanded the appeal for additional development. The case has since returned to the Board. This appeal was processed using the VBMS and Virtual VA paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of payment or reimbursement of unauthorized medical expenses has been raised by the record within a December 2008 congressional contact; however, the record does not reflect whether this issue has been adjudicated by the Agency of Original Jurisdiction (AOJ). The issue of entitlement to an increased rating for PTSD has also been raised. See VA examination dated in September 2013 ("The Veteran does report what sounds like worsening PTSD for which he is receiving therapy.") The Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. FINDING OF FACT Obstructive sleep apnea did not manifest in service or for many years thereafter, and is unrelated to service or a service-connected disability. CONCLUSIONS OF LAW 1. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). 2. Obstructive sleep apnea is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A; 38 C.F.R. § 3.159, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in October 2008, prior to the rating decision in question, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. This letter also provided notice regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, and identified private records. Pursuant to the Joint Motion, the parties agreed that the Board failed to comply with the duty to assist because it did not obtain a VA examination to determine whether the Veteran's obstructive sleep apnea may be related to service-connected PTSD. The June 2013 remand directed that the Veteran be afforded a VA examination to determine the nature and etiology of any obstructive sleep apnea. The examiner was requested to indicate whether it was at least as likely as not that any obstructive sleep apnea was caused by service-connected PTSD or was related to service. If the examiner determined that sleep apnea was not caused by service-connected PTSD or related to service, he/she was to answer whether it was aggravated by service-connected PTSD. The Veteran was provided a VA examination in September 2013. The examiner reviewed the claims folder and her opinion was supported by adequate rationale. The examiner provided a negative opinion regarding secondary service connection, to include aggravation. The Board acknowledges that the examiner did not provide a specific opinion as to direct service connection. The examiner, however, noted that the condition was not diagnosed until 1996 and the overall substance of the opinion makes clear that the examiner was relating the Veteran's obstructive sleep apnea to obesity. The Veteran does not allege onset of obstructive sleep apnea during active duty nor has he asserted any direct relationship to service. The Joint Motion focused on the need for an examination to address secondary service connection ("On remand, Appellant should be afforded a VA medical examination or opinion which addresses the relationship, if any, between Appellant's obstructive sleep apnea and his service-connected PTSD.") Under the circumstances of this case, the Board finds substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). Further examination or medical opinion is not needed. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c)(4). Laws and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the Court's decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). It is now well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir.2006)); Davidson v. Shinseki, 581 F.3d at 1315-16 (Fed.Cir.2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis."). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay 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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007)). If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-37. 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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background Service treatment records show that on examination for induction in March 1969, the Veteran was 69.5 inches tall and weighed 165 pounds. On separation examination in December 1976, the Veteran was 71 inches tall and weighed 190 pounds. On the associated report of medical history, the Veteran denied any shortness of breath, pain or pressure in chest, or frequent trouble sleeping. Service treatment records are negative for any diagnosis of or treatment for obstructive sleep apnea. The Veteran underwent a VA Agent Orange examination in May 1993. At that time, height was reported as 5 feet 11 inches and weight was 282 pounds. An August 1997 private medical record notes a diagnosis of sleep apnea and that the Veteran used a continuous positive airway pressure (CPAP) machine. On VA PTSD examination in February 1999, the Veteran reported that he had come down with diabetes in the last two years and has struggled with weight control, going up to nearly 300 pounds. He also reported having sleep apnea and that if his CPAP was not functional he tended to have more nightmares, sometimes of wartime topics. The Veteran underwent a fitness for duty examination in April 2002 in connection with his employment. Height was recorded as 5 feet 10 inches and weight was 308 pounds. He reported that he weighed approximately 154 pounds on graduation from high school and when he returned from Vietnam a few years later, he then began gaining weight and this has been a problem for him since. An August 2008 private sleep analysis report shows that the Veteran was 5 feet 10 inches tall and weighed 299 pounds. The Veteran underwent a VA examination in September 2013. Following examination and review, the examiner provided the following opinion and rationale: The Veteran has OSA since 1996. States he thinks that his PTSD is related because when he has nightmares, he has difficulty falling asleep or staying asleep. States that the nightmares have been more frequently since his strokes (3) in 2009. He has been placed on Prazosin for the nightmares and is starting group therapy tomorrow. He recently had a suicide attempt in [July] 2013. He feels the PTSD is aggravating his OSA. Feels that the OSA should be part of his disability. This Examiner opines that the OSA is less likely than not due to the PTSD, and the OSA is less likely than not aggravated by the PTSD. The OSA is due to the Veteran being morbidly obese. This veteran reports being overweight for the last 30 or more years. His BMI over the last 10 years has been between 46-64, and is presently at 46. He weigh[s] 325 pounds and 70.5 inches tall. Analysis As set forth, medical evidence confirms a current diagnosis of sleep apnea. The pertinent question is whether such diagnosis is related to service or service-connected disability. Regarding direct service connection, complaints or symptoms related to sleep apnea were not shown during service and the disorder was not diagnosed until many years following discharge. As discussed, the Veteran's sleep apnea has been related to obesity. The Board acknowledges the Veteran's statement that he gained weight following return from Vietnam and he is competent to report his weight gain. Review of service records indicates that the Veteran was taller and heavier at separation than he was at induction. Nonetheless, there is no indication that he was overweight at separation. On the contrary, the Veteran's build was reported as medium and not as heavy or obese. The Veteran's weight was approximately 100 pounds more on VA examination in 1993 than it was at separation examination in 1976, and sleep apnea was diagnosed in approximately 1996. The evidence simply does not establish that currently diagnosed sleep apnea is related to military service or events therein, to include any weight gain. Obstructive sleep apnea is not listed as a chronic disease under 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). Thus, 38 C.F.R. § 3.303(b) is not for application. See Walker. The Veteran's primary assertion is that his sleep apnea is caused or aggravated by service-connected PTSD. The Veteran was awarded service connection for PTSD at 30 percent effective October 2, 1998. The evaluation was increased to 50 percent from May 2, 2002. In his November 2008 notice of disagreement, the Veteran referenced a Board decision for another Veteran wherein the Board granted entitlement to VA benefits for sleep apnea as secondary to service-connected PTSD. The Joint Motion noted that the grant of benefits in that case was "based on sleep studies as well as applicable research which led the VA psychiatrist to conclude that PTSD and its treatment 'in all probability has aggravated the obstructive sleep apnea.'" In the Appellant's Brief, the attorney noted that "studies have shown that individuals with PTSD have a greater chance of developing sleep problems, including obstructive sleep apnea." See http://www.medpagetoday.com/MeetingCoverage/CHEST/23074; http://www.ncbi.nlm.nih.gov/pubmed/23243400. On review, the Board finds the VA opinion highly probative. It was based on physical examination and review of the claims folder and was supported by adequate rationale. The claims folder does not contain probative evidence to the contrary. That is, the evidence in this case does not show that the Veteran's sleep apnea is caused or aggravated by PTSD. Rather, his sleep apnea has been specifically related to obesity. In making this determination, the Board acknowledges the Veteran's contentions and the evidence and studies cited. In his notice of disagreement and VA Form 9, the Veteran argued that his sleep apnea caused or aggravated his PTSD and was now causing cardiac arrhythmias. Notwithstanding any questions as to competency, the Veteran's lay assertions simply do not outweigh the probative VA opinion of record. The Board has considered the referenced Board decision, but notes that such decisions are not precedential and are not binding on Board decisions in other cases. See 38 C.F.R. § 20.1303 (2012). Accordingly, this evidence, which is not specific to the Veteran's case, is of little probative value in establishing a relationship between currently diagnosed sleep apnea and service-connected PTSD. The Board further observes that the cited decision appears to contain positive nexus evidence specific to that case, whereas the current appeal does not. The Board has also reviewed the referenced internet articles, which suggest that combat veterans with PTSD have more cases of sleep apnea than otherwise might be expected, and that sleep apnea is a common comorbid condition in patients with PTSD. Medical articles or treatises 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 (1999). On review, the referenced articles or studies are general in nature and not specific to the facts of this particular case. In fact, neither article establishes a relationship (causation or aggravation) between PTSD and apnea. They do not serve to establish a positive nexus opinion and they are clearly insufficient to outweigh the case-specific findings referenced in the VA opinion. In summary, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs