Citation Nr: 1519199 Decision Date: 05/05/15 Archive Date: 05/19/15 DOCKET NO. 13-19 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2014, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript was not produced due to an inaudible recording. The Veteran was contacted and offered the opportunity to testify before the undersigned at an additional hearing, in accordance with 38 C.F.R. § 20.717. In June 2014, the Veteran elected to have the Veterans Law Judge that conducted the May 2014 hearing decide his case based on the record of evidence. FINDING OF FACT Obstructive sleep apnea was not manifest during service and is not attributable to service. CONCLUSION OF LAW Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). The requirements of the statute and regulation have been met with regard to the claims being decided herein. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2010 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, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in October 2013. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service VA treatment records. The Veteran was also afforded VA examinations in April 2013 and October 2013. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, and conducted an appropriate examination. Supporting rationale was also provided for the opinions proffered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that these examinations are adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2014). In May 2014, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript was not produced due to an inaudible recording. The Veteran was contacted and offered the opportunity to testify before the undersigned at an additional hearing, in accordance with 38 C.F.R. § 20.717. In June 2014, the Veteran elected to have the Veterans Law Judge that conducted the May 2014 hearing decide his case based on the record of evidence. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). To establish a right to compensation for a present disability, a 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran does not have a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Obstructive Sleep Apnea The Veteran claims that he has obstructive sleep apnea due to his active service. Initially, the Veteran does not allege and the evidence does not suggest that he engaged in combat with the enemy. The Board notes that the Veteran's DD Form 214 does not show any combat awards or citations. Based on the above, the Board finds that the claimant is not a 'combat Veteran' and the law found at 38 U.S.C.A. § 1154(b) does not apply to his claim. The service treatment records indicate that the Veteran denied experiencing difficulty sleeping at his January 1995 separation examination. Further, the Veteran denied any history of difficulty sleeping on a January 1995 Report of Medical History. Similarly, the Veteran did not make any related complaints during his active service. Specifically, the Veteran denied frequent trouble sleeping on Reports of Medical History dated March 1982, December 1982, January 1984, December 1986, March 1985, October 1993, and January 1995. The Veteran submitted a copy of a service treatment note indicating that following a motor vehicle accident in June 1987 he was experiencing difficulty sleeping due to cervical pain, a fractured left arm, and a right knee injury. In support of his claim, the Veteran submitted a medical opinion from Dr. M. T., M.D. dated October 2010. This report notes the June 1987 treatment record showing the Veteran's complaint of difficulty sleeping as a support Dr. M. T.'s opinion that the Veteran's obstructive sleep apnea is at least as likely as not due to service. Dr. M. T. also notes that the Veteran had been diagnosed with obstructive sleep apnea a year earlier. Private treatment records dated September 2009 show the Veteran was seen for an initial consultation for complaints of fatigue and daytime hypersomnolence. The Veteran reported that he had experienced fatigue since April 2009. The Veteran also reported that in April 2009 he fainted while at dinner. A September 2009 baseline polysomnography showed results consistent with obstructive sleep apnea. The Veteran also submitted lay statements attesting to the observance of symptoms of obstructive sleep apnea during the Veteran's active service, including snoring and gasping for air while on active duty. The Veteran was afforded a VA examination in April 2013. Upon review of the record and a clinical examination, the examiner noted the Veteran's report of difficulty sleeping following the June 1987 motor vehicle accident. The examiner noted that service treatment records showed the Veteran did not make any further complaints of difficulty sleeping. The examiner noted that the Veteran's weight had increased from 160 pounds in service to 192 pounds currently with a body mass index of 32.5. The examiner noted that excess weight was a risk factor associated with obstructive sleep apnea. Based on this evidence, the examiner opined that the Veteran's obstructive sleep apnea was less likely than not due to his active duty service. The Veteran submitted an additional medical opinion in support of his claim. A report from Dr. S.T., M.D. dated June 2013 notes that the Veteran's obstructive sleep apnea was a poorly understood condition during his period of active duty. Dr. S.T. opined that it was his opinion that the Veteran had been suffering for many years prior to his consultation with the Veteran. Dr. S.T. opined that he agreed with the opinion from Dr. M. T. that the Veteran had symptoms of obstructive sleep apnea in service. Further, Dr. S.T. disagreed with the April 2013 VA examiner's opinion, noting that the Veteran's body mass index was 28% according to his calculations and that the Veteran's body mass index had no bearing on his obstructive sleep apnea. An additional VA opinion was obtained in October 2013. Upon review of the record, the examiner opined that it is less likely than not that the Veteran's obstructive sleep apnea was incurred in service. The examiner noted their review of the opinions from Dr.'s M.T. and S.T. The VA examiner noted that while these opinions were appreciated, there was no evidence of complaints of obstructive sleep apnea in service. The examiner noted that the June 1987 treatment note was non-specific to obstructive sleep apnea and related to the Veteran's pain due to a recent motor vehicle accident. Additionally, the examiner noted that the first evidence of documented chronicity was not until 2009 when the Veteran was seen for fatigue and snoring. See Initial Consultation dated September 2009. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In sum, the service treatment records, private sleep therapy records, and VA examinations and opinions of record indicate that the Veteran did manifest symptoms of obstructive sleep apnea in service or for many years after and that his obstructive sleep apnea is not due to or incurred in active service. In contrast, the Veteran has submitted lay statements and two medical opinions in support of his claim. The Veteran asserts that he has obstructive sleep apnea that was incurred in service. To the extent that there are lay statements asserting that the Veteran has obstructive sleep apnea, related to an in-service injury or illness, the Board finds that the probative value of the general lay assertions are outweighed by the medical evidence of record which does not show any pathology, disease, residuals of injury or diagnoses of obstructive sleep apnea in service or for many years after discharge. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran's contentions and the lay statements of record that he experienced symptoms of sleep apnea while on active duty are contradicted by the Veteran's service treatment records. Additionally, the Veteran reported at the initial consultation in September 2009 that he experienced the onset of his symptoms sometime in April 2009. The opinions from Dr.'s M. T. and S. T. are afforded little to no probative value based on their citation to a single treatment record that was non-specific to obstructive sleep apnea as the sole support for their opinion. Aside from their assertion that this condition was poorly understood during the Veteran's period of active duty, these opinions were not supported by other rationale or citation to the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The lay statements from the Veteran's friends and family reference such symptoms as daytime sleepiness, snoring and gasping for air while sleeping. A statement from E. C. received in October 2010 attests to witnessing the Veteran snoring in his sleep and gasping for air while they were stationed together on active duty. A statement from K. W. dated October 2010 notes the Veteran reported difficulty sleeping and tiredness during the day while he was on active duty. The Board finds the Veteran and his friends and family competent to report his symptoms. The Veteran does not allege that he was diagnosed with obstructive sleep apnea in service and the record of evidence shows no diagnosis of obstructive sleep apnea until approximately 14 years after discharge. Here, there is a conflict in the evidence. The appellant has submitted lay and medical evidence which attributes the onset of obstructive sleep apnea to service. However, in March 1982, December 1982, January 1984, December 1986, March 1985, October 1993, and January 1995, the Veteran denied a history of difficulty sleeping. This is in sharp contrast with the observations of the lay informants. Furthermore, when the Veteran sought treatment in September 2009, he reported a recent onset rather than an onset in service. We find his initial report for treatment purposes to be highly probative as it is expected that he would be seeking appropriate medical care. Further, the Veteran's September 2009 initial consultation for treatment purposes is fully consistent with the denial of sleeping difficulty in March 1982, December 1982, January 1984, December 1986, March 1985, October 1993, and January 1995. In essence, the Board finds the contemporaneous in-service reports, the September 2009 initial consultation, and the April 2013 and October 2013 VA opinions are entitled to greater probative weight and credibility than the medical evidence and lay statements of the Veteran and his friends and family. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. ORDER Service connection for obstructive sleep apnea is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs