Citation Nr: 1340243 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 09-48 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased rating for degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from August 1975 to September 1979 and from April 1982 to February 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Veteran was afforded 60 days after the hearing to submit additional evidence. None was submitted within this period, but the Veteran did submit a statement requesting "an extension of time to the maximum amount of time allowable by law" so that he could gather additional evidence. Thereafter, the case was remanded by the Board in June 2012 for additional development. This provided the Veteran even more time to submit additional evidence. The Veteran was specifically requested to submit any additional evidence in a June 2012 letter. However, no such evidence was submitted and the Veteran did not request any further time extension. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims file or irrelevant to the issue decided herein. The issue of entitlement to an increased rating for degenerative joint disease of the lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Sleep apnea did not have onset during the Veteran's active service; and, the preponderance of the evidence fails to establish an etiological link between the Veteran's active service and his diagnosed sleep apnea. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date or the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a letter dated in March 2007 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in January 2009. Nothing more was required. VA has also complied with its duty to assist the Veteran in the development of his claim. All available service treatment records (STRs) and identified post-service treatment records were obtained, including records from Tinker Air Force Base. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; and, the Board is also unaware of any such evidence. In addition, the appropriate VA medical opinion addressing the etiology of the Veteran's claimed sleep apnea has been obtained. Most recently, as directed by the June 2012 Board remand, a VA medical opinion was obtained in January 2013. The VA Disability Benefits Questionnaire (DBQ) report reflects that the examiner reviewed the Veteran's medical history and lay statements as contained in the claims file and examined the Veteran before rendering an opinion. The opinion included the rationale that was used to support the examiner's conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311(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). Parenthetically, VA has no duty to provide the Veteran with a private examination, as requested by the Veteran in June 2013. He has been provided the opportunity to provide his own medical opinion, but has not done so. Moreover, to the extent that the Veteran meant to refer to an independent medical opinion pursuant to 38 C.F.R. § 20.901(d), the Board finds that the issue involved in this appeal does not present a question of such medical complexity or controversy to require an independent advisory medical opinion. There has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Discussion of the Veteran's March 2012 Travel Board hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to service connection for sleep apnea was identified as an issue on appeal. Information was elicited from the Veteran concerning the nature and etiology of his sleep apnea. In particular, and a result of his testimony, the matter was Remanded to obtain post-service treatment records and afford the Veteran a VA examination. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Generally, the evidence 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). No such disease or disability has been diagnosed or identified. As a result, service connection via the demonstration of continuity of symptomatology is not applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran maintains that he has sleep apnea that had its onset during service. He argues that his in-service diagnosis of asthma was a mistake. He believes that his asthma symptoms were in fact symptoms of his sleep apnea. The Veteran has recounted in-service snoring which kept others awake when he shared quarters. E.F., one of the Veteran's supervisors during service, further indicated that the Veteran reported trouble sleeping at night when it was observed he had trouble staying awake during the day. The Veteran has asserted that his sleep problems continued post-service, that his cousin who is a nurse observed him temporarily stop breathing while taking a nap in 2001 and encouraged him to seek treatment, and that he was diagnosed with sleep apnea once he eventually did so. See February 2005 statement from the Veteran, August 2007 statement from E.F., December 2009 VA Form 9 and March 2012 hearing transcript. The STRs (dated from 1975 to 1998) are devoid of any complaints, findings or symptoms of sleep apnea. He specifically denied frequent trouble sleeping a few occasions, including in August 1979, February 1982 and May 1990 Reports of Medical History. STRs show that the Veteran was seen in October 1985 with complaints of wheezing, difficulty breathing and cough, including at night, which increased notably with exertion. He made no complaints of snoring or apnea. He was diagnosed with asthma, was treated with an inhaler and improved. Following service, Tinker Air Force Base treatment records show that the Veteran was diagnosed with probable obstructive sleep apnea in November 2002. This diagnosis was confirmed in December 2002 following referral to a private care provider for a sleep study. The evidence of record also includes Tinker Air Force Base treatment records dated from 2003 to 2012, which show complaints of and treatment for sleep apnea. None of the records include an opinion relating sleep apnea to the Veteran's active service. A January 2013 VA DBQ report shows that the examiner reviewed the Veteran's claims file. After examining the Veteran, the examiner rendered a diagnosis of obstructive sleep apnea. The examiner opined that it is less likely as not that sleep apnea is due to military service because the STRs contain no objective documentation of symptomatology consistent with the symptoms of sleep apnea. The examiner noted that the Veteran was diagnosed with asthma and treated with an inhaler in 1985, but opined that the symptoms documented during service are not those symptoms that are typically associated with sleep apnea such as snoring, daytime hypersomnolence, unrefreshing sleep, or witnessed periods of apnea. The examiner also reviewed the lay statement of record, to include statements that the Veteran was moved to night shift when he could not stay awake on day shift. However, the examiner noted that this statement does not support a diagnosis of sleep apnea as there is no mention that the Veteran was unable to stay awake during his night shift duties as well. The examiner stated that although the Veteran reported continuity of sleep apnea symptoms since service, there is no clinical objective evidence to support his subjective report. The first documentation of symptomatology suggestive of sleep apnea was in November of 2002. The examiner concluded that given the available information there was no clinical objective evidence to link sleep apnea diagnosed in 2002 to service. The medical evidence of record shows that sleep apnea has been diagnosed. While the Veteran was diagnosed with asthma in 1985, the STRs are completely silent for any complaints of sleep problems or a diagnosis of sleep apnea. The first medical evidence of such disability is in 2002, four years after service. Indeed, while not necessarily outcome determine, such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran's recent statements reporting symptoms of sleep apnea since service are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to sleep apnea. See AZ v. Shinseki, No.2012-7046, 2013 WL XXXXXXX, at *Y (Fed. Cir. Sept. 30, 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In particular, the Veteran's September 2005 initial application for disability benefits listed numerous medical complaints, but nothing related to the currently claimed sleep apnea. Based upon the language and context of the September 2005, the Board finds that the Veteran was reporting all the disabilities/medical conditions/symptoms that he was experiencing at that time that he believed to be related to service. Indeed, a review of the early treatment records for sleep apnea in 2002 and 2003 make no reference to symptomatology dating back to service. Such is persuasive evidence that the Veteran had not experienced sleep problems since service and outweighs his present recollection to the contrary. Service connection on a direct basis under 3.303(a) is not warranted. Regarding the etiology of sleep apnea, the evidence of record does not include any medical opinion that the Veteran's sleep apnea is (or might be) related to his active service. To the contrary, the 2013 VA DBQ opinion is clearly against the Veteran's claim. The Board finds this opinion to be persuasive as it is based upon a complete review of the Veteran's entire claims file and examination of the Veteran and supports its conclusions with detailed rationale. The VA examiner considered the Veteran's report that he has had problems sleeping and breathing at night since service. After considering evidence of record and examining the Veteran, the VA examiner essentially opined that the Veteran's current sleep apnea is not related to his military service. There is no medical opinion to the contrary of record. Consideration has been given to the Veteran's assertion that his sleep apnea had its onset in service or is otherwise related to his active service. However, while lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a sleep disorder 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 disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that sleep studies 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, supra, 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 sleep problems, there is no indication that the Veteran is competent to etiologically link any reported in-service symptoms to sleep apnea diagnosed many years after his discharge. The Veteran (and likewise, E.F.) 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 the Veteran (or E.F.) received any special training or acquired any medical expertise in evaluating sleep 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. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. ORDER Service connection for sleep apnea is denied. REMAND One of the matters the Board must address is which issue or issues are properly before the Board. An appeal to the Board is initiated by a Notice of Disagreement (NOD) and completed by a substantive appeal after an SOC (Statement of the Case) is furnished. In essence, the following sequence is required: There must be a decision by the RO; the claimant must timely express disagreement with the decision; VA must respond by issuing an SOC; and finally the claimant, after receiving the SOC, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202 and 20.203. An August 2012 rating decision awarded a temporary total rating for degenerative joint disease of the lumbar spine, effective from March 13, 2012, to June 30, 2012. Thereafter, effective July 1, 2012, a 20 percent rating was assigned. See VVA. In a July 2013 rating decision, the RO awarded a 40 percent rating for degenerative joint disease of the lumbar spine, effective June 17, 2013. See VVA. In the July 2013 notice letter to the Veteran, the RO stated that it had "made a decision on [his] notice of disagreement received on February 21, 2013." The RO further informed the Veteran that the decision represented a partial grant of the benefits sought, and if he would like to withdraw his appeal, he should complete and return the enclosed Appeal Status Election Form within 60 days. See VVA. This 60 day period has lapsed and the record before the Board does not show that the Veteran has withdrawn his appeal. However, the record before the Board does not show that the Veteran has been provided an SOC in response to the NOD. Because the NOD placed the issue in appellate status, the matter must be remanded for the originating agency to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should issue an SOC to the Veteran and his representative addressing the issue of entitlement to an increased rating for degenerative joint disease of the lumbar spine. It should also inform them of the requirements to perfect an appeal with respect to the new issue. 2. If the Veteran perfects an appeal with respect to the increased rating issue, the RO or the AMC should ensure that all indicated development is completed before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs