Citation Nr: 1546388 Decision Date: 11/02/15 Archive Date: 11/10/15 DOCKET NO. 99-17 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to narcolepsy. 2. Entitlement to an effective date earlier than July 1, 1997, for the grant of service connection for narcolepsy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran served on active duty from September 18, 1974, to November 20, 1974. The issue of entitlement to service connection for sleep apnea comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the RO in Little Rock, Arkansas. The issue of entitlement to an effective date earlier than July 1, 1997, for the grant of service connection for narcolepsy comes from a July 2012 rating decision of the same RO. In June 2012, the Board denied service connection for sleep apnea on a direct service connection basis. That decision is final. The decision here is limited to the question of service connection on a secondary basis. The issue of entitlement to an effective date earlier than July 1, 1997, for the grant of service connection for narcolepsy has not been certified to the Board via VA Form 8; however, the Form 8 is for administrative purposes only and does not confer or deprive the Board of jurisdiction. See 38 C.F.R. § 19.35 (2015). As the appeal has been perfected with a VA Form 9, the Board has jurisdiction and will address the issue. On this issue, the Veteran has requested a hearing. Therefore, the issue of entitlement to an earlier effective date is addressed in the REMAND below and is REMANDED to the RO to schedule a hearing. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran has a current diagnosis of sleep apnea and service connection is in effect for narcolepsy, effective July 31, 1997. 2. Sleep apnea is not etiologically (causation or aggravation) related to service-connected narcolepsy. CONCLUSION OF LAW Sleep apnea is not proximately due to or a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for sleep apnea on the basis that it is proximately due to or a result of his service-connected narcolepsy, or was aggravated by the service-connected narcolepsy. The Board has previously addressed the theory of direct service connection in a prior decision, and that issue will not be further addressed here. There is also no presumption of service connection for sleep apnea. Therefore, the Board's decision will be limited to secondary service connection by causation or aggravation. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). Under the regulation in effect at the time the Veteran filed his claim, service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (as in effect prior to October 10, 2006). That regulation was interpreted to permit service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Allen, 7 Vet. App. at 448 (1995). There is no dispute as to the first two Wallin elements. The Veteran has been diagnosed with sleep apnea. He also has narcolepsy which is a service-connected disability. Regarding medical nexus, in the process of determining the cause of the Veteran's sleep problems (described as being up all night and wanting to sleep all day), there was initial discussion of whether sleep apnea might be the primary cause, as opposed to narcolepsy. Sleep apnea was first suspected in a June 1992 sleep consultation conducted by VA. However, a VA Pulmonary Sleep Lab study in March 1993 found no obstructive or central sleep apnea. A multiple sleep latency report in August 1993 confirmed the presence of narcolepsy; however, when the Veteran initially sought treatment from VA, he did not have these records with him. A VA sleep clinic initial evaluation conducted in October 1999 confirmed the Veteran's report that he had been diagnosed with narcolepsy; however, the examiner found that his history was more suggestive of obstructive sleep apnea rather than narcolepsy given the long history of snoring, strong family history, and the absence of ancillary symptoms. The examiner ordered a multiple sleep latency test later that same month, which again confirmed the diagnosis of narcolepsy. Obstructive and central apnea were not found on that study. Another sleep study was conducted in September 2005 and this appears to be the first confirmed diagnosis of sleep apnea, specifically diagnosed as obstructive sleep apnea. The Veteran was afforded a VA examination in November 2011 to determine the etiology of his various sleep disorders. The examiner opined that sleep apnea was not caused by narcolepsy. The rationale was that sleep apnea was an anatomical disease not caused by narcolepsy. The Board requested an addendum medical opinion in its June 2012 remand to address the question of aggravation. In a February 2013 report, the physician who conducted the November 2011 VA examination opined that the Veteran's "narcolepsy does not have any [e]ffect on his sleep apnea. Narcolepsy does not make obstructive sleep apnea worse or aggravate the obstructive sleep apnea." The rationale was that "[n]arcolepsy is a central nervous system disease, and there is no association between these 2 diseases." There is no medical opinion that purports to relate current sleep apnea to narcolepsy. A March 2008 VA Sleep Study Consultation includes the notation that "OSA is known to coexist with narcolepsy;" however, this does not imply an etiologic (causation or aggravation) relationship. A January 2011 VA Neurology Consult report lists obstructive sleep apnea along with hypertension and hyperlipidemia as comorbidities of narcolepsy; however, the term "comorbidity" or "comorbid" simply refers to disease processes which exist simultaneously (see Dorland's Illustrated Medical Dictionary 399 (31st ed. 2007). It does not suggest or imply causation or aggravation of one by another. The Veteran has submitted several articles which discuss the definition of obstructive sleep apnea and which generally assert that many sleep disorders can have similar symptoms, including obstructive sleep apnea and narcolepsy (see Narcolepsy Fact Sheet of the National Institute of Neurological Disorders and Stroke, National Institutes of Health contained in VBMS record 12/30/2009). A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed 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. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin, 11 Vet. App. 509. In this case, however, the medical text evidence submitted by the appellant is not accompanied by the medical opinion of a medical professional. Additionally, it fails to demonstrate with any degree of certainty a relationship between the Veteran's service-connected narcolepsy and his obstructive sleep apnea. A newspaper article dated June 7, 2010 from USA Today discusses several contributing factors to sleep apnea, but does not mention narcolepsy. As the treatise evidence submitted does not address the cause of sleep apnea in the Veteran's case with any specificity, it does not constitute competent evidence of the claimed medical nexus. The Veteran's lay assertions are the only evidence in favor of etiology in this case. He has generally asserted that his narcolepsy and sleep apnea are related. It is well established that lay statements are competent evidence with respect to some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, lay evidence is competent with regard to identification of a disease with 'unique and readily identifiable features' which are 'capable of lay observation.' See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('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'); see 38 C.F.R. § 3.159(a)(2). The Board finds that establishing the etiology of sleep apnea is not the equivalent of relating a broken bone to a specific injury. The Veteran has not been shown to have the necessary medical training and/or expertise to opine that narcolepsy caused or aggravated sleep apnea. Such an opinion requires knowledge of what the potential causes of sleep apnea are and the complex question of how his narcolepsy or symptoms of narcolepsy acted in his specific case to bring on sleep apnea or to worsen sleep apnea, as well as why other potential causes are not more likely. These are not matters which are capable of lay observation. Simply noting that one followed the other, or that both affect sleep is not competent evidence of causation or aggravation. In sum, although the Veteran has narcolepsy as a service-connected disability, and although he has a current diagnosis of sleep apnea, a preponderance of the evidence is against any etiologic relationship between the two. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Therefore, the appeal is denied. Finally, the Veteran does not assert that there has been any deficiency in the notice provided to him in June 2010 under the Veterans Claims Assistance Act of 2000 (VCAA) and he has not identified any prejudice resulting from any deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice on a notice deficiency; the burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency's determination). The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, records from the Social Security Administration, and private treatment reports identified by the Veteran. The RO has also obtained a thorough medical examination regarding the claim, as well as a medical opinion. He has made no specific allegations as to the inadequacy of any opinion. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's June 2012 remand instructions by obtaining an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's sleep apnea is causally related to, or worsened by, his service-connected narcolepsy. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. ORDER Service connection for sleep apnea is denied. REMAND In the June 2015 VA Form 9 submitted to perfect the appeal of the effective date assigned for narcolepsy, the Veteran requested a videoconference Board hearing to address that issue. Accordingly, the of entitlement to an effective date earlier than July 1, 1997, for the grant of service connection for narcolepsy is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). Expedited handling is requested.) A videoconference Board hearing should be scheduled in accordance with the docket number of his appeal. The Veteran and his representative should be notified of the time and place to report for the scheduled hearing. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This issue must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals 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 2014). ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs