Citation Nr: 1526239 Decision Date: 06/19/15 Archive Date: 06/26/15 DOCKET NO. 09-35 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1982 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In January 2013, this matter was remanded by the Board for additional development. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in addition to the paper claims file, the Veteran also has paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) files associated with his claims. A review of the documents in Virtual VA and VBMS reveals that, with the exception of an April 2015 brief submitted by the Veteran's representative, such documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a September 2007 letter, sent prior to the initial unfavorable decision issued in April 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. In addition, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. VA has also satisfied its duty to assist the Veteran in the development of his claim. This duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the instant case, service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded a VA examination in October 2009 and an addendum opinion was obtained in March 2013 with respect to the issues decided herein. In this regard, in January 2013, the Board found that the October 2009 examination was inadequate for purposes of determining whether the Veteran's sleep apnea was related to his military service. Specifically, the Board found the examiner's conclusion that there was no link between the Veteran's service and sleep apnea merely because there was no in-service diagnosis to be inadequate. In addition, the examiner failed to address the fact that the Veteran sought medical treatment for residuals of snoring and gagging in 1987, and that he complained of insomnia at his doctor's visit in September 2004, a month prior to his discharge. Therefore, the Board remanded for an addendum opinion that addressed these contentions. Thereafter, an addendum opinion was obtained in March 2013. The Board notes that, in his April 2015 brief, the Veteran's representative indicated that the March 2013 VA opinion was inadequate. The representative stated that, despite being asked to do so by the Board in its January 2013 remand, the physician offering the opinion failed to address the Veteran's 1987 snoring incident, or address his reported continuity of symptomatology since service. However, the Board finds, as explained below, that both the 1987 incident and the Veteran's report of symptoms since his discharge were addressed by the report. As the Board finds that the report of VA examination was prepared by a competent clinician who considered the Veteran's claims file and medical history and provided the requested etiological opinion, complete with necessary rationale, the opinion is adequate to adjudicate the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. The Board further finds that there has been substantial compliance with the January 2013 remand orders. In this regard, such directed that the AOJ obtain updated VA treatment records, which was accomplished in February 2013, and obtain the aforementioned addendum opinion, which was done in March 2013. Therefore, the Board finds that the AOJ substantially complied with the remand orders such that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that he currently suffers from sleep apnea, which began as a result of his military service. Specifically, the Veteran claims that during his two decades in the Air Force, he was assigned periods of significantly varied work shifts. These varied shifts-in which he would work for a certain number of days on an afternoon shift, then an overnight shift, and then a day shift-caused him to change his sleep patterns. As a result of the changed patterns, the Veteran contends, he developed sleep apnea. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id., also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities, to include the Veteran's sleep apnea, which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, presumptive service connection, to include as based on continuity of symptomatology, is not warranted in the instant case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a 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, supra. As an initial matter, the Board finds that the Veteran has a current diagnosis of sleep apnea. In this regard, in October 2006, the Veteran was seen at a sleep disorders clinic. Records from his visit noted a history of daytime fatigue, bruxism, depression, restless sleep and leg movements. The Veteran reported falling asleep while waiting at stoplights. At that time, the Veteran underwent a sleep study and was diagnosed with a moderate degree of obstructive sleep apnea. In November 2006, the Veteran underwent a sleep study, this time with a CPAP machine, which was shown to control his obstructive sleep apnea. Additionally, service treatment records dated in December 1987 noted the Veteran sought medical care for a swollen uvula after awakening with a gagging sensation in his throat. It was noted at that time that the Veteran engaged in "heavy-duty" snoring while asleep on his back. No shortness of breath or choking was noted, and the Veteran was found to have mild edema and small submucosal hemorrhage of the uvula. He was advised to use lozenges as needed and refrain from sleeping on his back. Further, private treatment records dated September 2004 show the Veteran presented to a health clinic on his Air Force base with complaints of insomnia. It was noted at that time that the Veteran experienced agitation when trying to fall asleep and that his arms and legs jerked when he attempted to sleep. The Veteran was prescribed medication to aid in falling asleep. Furthermore, the Board notes that he is competent to report the symptoms and events he experienced during service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In this regard, the Veteran submitted a statement in August 2007 in which he described the constant change in his sleep schedule due to his duties in the Air Force. He reported having to work two afternoon shifts in a row, then two overnight shifts, and then two morning shifts, followed by two days off from work. From 1997 to 2001, the Veteran explained, he worked shifts from noon until 8 o'clock pm for four days, and then shifts from 8 o'clock pm until 4 o'clock am for four days. The Veteran described averaging only two to three hours of sleep while on shift work, awakening variously. He relayed an incident of heavy snoring experienced while he was deployed in 1990, and witnessed by other military personnel. The Veteran reported falling asleep in meetings and training sessions, and finally going to the doctor in September 2004, just prior to leaving service. As noted above, at that time, the Veteran was prescribed medication to help with sleep. In his September 2009 appeal to the Board, the Veteran noted that his history of hypertension and snoring in service are indications of sleep apnea. Further, he reiterated that his changing sleep schedule-due to his work assignments-caused him to develop sleep apnea. Therefore, the remaining question is whether there is a nexus, or link, between the Veteran's sleep apnea and his military service. As such, in October 2009, the Veteran underwent a VA examination to determine the etiology of his sleep apnea. At that time, the Veteran reported using a CPAP machine and denied the use of medication. The examiner reviewed the Veteran's claims file and determined that the Veteran's obstructive sleep apnea was less likely than not caused by, related to, or worsened beyond its natural progression by military service. As rationale, the examiner indicated there was no in-service diagnosis and the only episode of insomnia experienced by the Veteran was associated with increased muscle tension and worry. In January 2013, the Board found that the October 2009 examination was inadequate for purposes of determining whether the Veteran's sleep apnea was related to his military service. Specifically, the Board found the examiner's conclusion that there was no link between the Veteran's service and sleep apnea merely because there was no in-service diagnosis to be inadequate. In addition, the examiner failed to address the fact that the Veteran sought medical treatment for residuals of snoring and gagging in 1987, and that he complained of insomnia at his doctor's visit in September 2004, a month prior to his discharge. Therefore, the Board remanded for an addendum opinion that addressed these contentions. Thereafter, in March 2013, a different VA examiner reviewed the Veteran's file and provided an addendum opinion concerning the Veteran's sleep apnea. The examiner concluded that the Veteran's sleep apnea was less likely than not incurred in or caused by service. In a detailed rationale, the examiner addressed the 1987 snoring incident by explaining that obstructive sleep apnea is not indicated by merely snoring. The examiner explained, as well, that sleep apnea could not be caused by changing schedules and the inability to resume sleeping habits. The examiner also addressed the Veteran's contentions of insomnia since service by explaining that experiencing difficulties falling asleep is not an indication of sleep apnea. The examiner cited medical literature which determined that the most common form of sleep apnea, obstructive sleep apnea, occurs most often in moderately or severely obese individuals who tend to sleep on their backs, and that individuals with anatomically narrowed airways due to enlarged tonsils and adenoids are predisposed to sleep apnea syndrome. The examiner described his review of the Veteran's records and noted that the Veteran's weight had been steadily increasing since the initial 1987 snoring incident. At that time, his weight was 185 pounds. At the time of the 2004 doctor visit, he weighed 192. In 2006, when the Veteran underwent the sleep study and was diagnosed with sleep apnea, he weighed 200 pounds. The examiner cited medical literature indicating that obese individuals who lose as little as 10 pounds have found their sleep apnea cured, indicating that even a small fluctuation in weight can cause sleep apnea. He reiterated that there is no medical literature to support the theory that changing sleep patterns abruptly can cause sleep apnea, and he addressed the theory proffered by the Veteran in his appeal, concerning hypertension. The examiner noted that, while hypertension is also based on weight gain, hypertension itself does not cause sleep apnea. He concluded that the Veteran's obstructive sleep apnea is more likely than not secondary to his weight gain. As the March 2013 VA examiner proffered an opinion that considered all of the pertinent evidence of record, to include statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, supra. Of note, there is no contrary medical opinion of record. The Board has considered the Veteran's lay assertions that his sleep apnea had its onset in, or is otherwise related to his service, to include his aforementioned work schedule; however, as a lay person, he is not competent to render such a complex medical opinion. In this regard, while he is competent to describe his in-service and current sleep symptoms as well as the nature of military service, the cause of sleep apnea involves a medical subject regarding an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, determinations as to the diagnosis of a sleep or breathing disorder includes specialized testing, to include a sleep study, polysomnogram, and/or pulmonary functioning testing, and the etiology of such requires knowledge of the inner workings of the human body. Therefore, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the March 2013 VA examiner's opinion, which provides that there is no nexus between the Veteran's sleep apnea and his military service, is the only competent evidence of record related to the nexus element. Accordingly, as the Veteran's sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident in service, service connection for such disorder is not warranted. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea. Thus, that doctrine is not applicable in the instant appeal, and the Veteran's claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for sleep apnea is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs