Citation Nr: 1528741 Decision Date: 07/06/15 Archive Date: 07/15/15 DOCKET NO. 13-24 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, to include on a secondary basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from January 1999 to June 1999 and from February 2000 to December 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for sleep apnea as secondary to service-connected asthma. Although the RO confirmed and continued the denial of the Veteran's claim in a January 2010 rating decision and then characterized the claim as a claim to reopen a previously denied claim of entitlement to service connection for sleep apnea, and denied such claim to reopen in a September 2010 rating decision, the Board notes that the claim is actually one of service connection and not a claim to reopen, as the Veteran submitted a timely notice of disagreement (with respect to the August 2009 rating decision) in January 2010. In April 2014 the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT In giving the Veteran the benefit of the doubt, the competent medical evidence establishes that it is at least as likely as not that the Veteran's sleep apnea is etiologically related to active service. CONCLUSIONS OF LAW Sleep apnea was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the decision below, the Board has granted the Veteran's claim. Therefore, regardless of whether the requirements have been met in this case with regard to this claim, no harm or prejudice to the appellant has resulted. As such, the Board concludes that the current laws and regulations have been complied with, and a defect, if any, in providing notice and assistance to the Veteran, including pursuant to Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), was at worst harmless error in that it did not affect the essential fairness of the adjudication of the claims. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As discussed more thoroughly below, the Veteran is not diagnosed with a right shoulder or left knee disability, such as arthritis, which is recognized as a chronic disability in 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In Allen v. Brown, 7 Vet. App. 439 (1995), the Court held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service- connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the holding in Allen; however, under the facts of this case the regulatory change does not impact the outcome of the appeal. Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for sleep apnea. The Board notes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The Veteran contends that service connection for sleep apnea is warranted because it had its onset during service, or in the alternative, that it is secondary to his service-connected asthma and/or rhinitis. The service treatment records include a December 2002 entry which notes that the Veteran reported congestion and sore throat for three days. He also reported that it is difficult for him to breathe at night. A February 2009 VA examination report reflects the Veteran's complaints that since 2002 he experienced snoring and choking in his sleep (which was noted by company soldiers). The examiner opined that the Veteran's sleep apnea is not caused by or the result of his asthma. The examiner reasoned that sleep apnea is related to the occlusion of the upper airway, usually at the oropharynx, leading to the collapse of the upper airway. The examiner stated that an already present sleep apnea can be worsened by asthma but it is not caused by asthma. The examiner explained that asthma causes airways to spasm, which increases the chance that the airway will collapse during sleep. A March 2010 private treatment record from Dr. Aranda indicates that the Veteran is diagnosed with sleep apnea and rhinitis. Dr. Aranda pointed out that at least once during 2002 the Veteran reported difficulty breathing at night. He also had symptoms of asthma and rhinitis with suboptimal therapy. Dr. Aranda opined that there is a 50/50 chance that the Veteran's sleep apnea was present at that time or developed at that time due to his throat and nasal symptomatology. A March 2012 private medical examination report reflects that the Veteran's sleep apnea is at least as likely as not caused by the inservice event injury or illness. The private physician reasoned that the Veteran's sleep awakening and EPS were caused by sleep apnea, and worsened by rhinitis. An April 2013 VA examination report reflects that it is at least as likely as not that the Veteran's sleep apnea is aggravated beyond its normal progression by his asthma. The examiner reasoned that it is well described in medical literature that respiratory conditions including asthma can worsen sleep apnea because there is hyperactivity and spasm of the airways. The examiner also opined that the sleep apnea is not caused by the inservice event, injury or illness, nor is it caused by asthma. The examiner reasoned that asthma and sleep apnea are different medical conditions and have different pathophysiological mechanisms and are not etiologically related. The examiner provided no opinion as to why the sleep apnea is not etiologically related to service, to include the documented complaints of difficulty breathing at night in December 2002. With respect to service connection on a direct basis, the Board notes that there are private medical opinions in favor of the claim and a VA medical opinion against the claim. The private medical opinions sufficiently support the opinions in that they explain that the Veteran's difficulty breathing at night and nasal symptomatology during service were at least as likely as not the onset of his sleep apnea. The April 2013 VA medical opinion, while finding that it is less likely than not that the sleep apnea is etiologically related to service, is insufficient insofar as the rationale for the opinion only addresses the fact that sleep apnea is not etiologically caused by asthma. It does not address the difficulty breathing at night documented during service nor does it address why the sleep apnea is not otherwise etiologically related to service. Thus, in giving the Veteran the benefit of the doubt, the Board finds that the probative evidence of record shows that the Veteran's sleep apnea is etiologically related to service. As such, service connection is granted for sleep apnea. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). [With respect to the claim on a secondary basis, there are three medical opinions, a private medical opinion and essentially two VA medical opinions, indicating that the Veteran's sleep apnea is aggravated by his service-connected asthma. There is no contrary opinion of record stating that the Veteran's sleep apnea is not aggravated by his service-connected asthma. However, because service connection on a direct basis is the greater benefit, the Board need not discuss secondary service connection any further.] ORDER Entitlement to service connection for sleep apnea is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs