Citation Nr: 1606954 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 14-22 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1973 to March 1974 and from November 1976 to September 1990. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2012 rating decision by the Department of Veterans Affairs, Regional Office, located in New Orleans, Louisiana (RO), which denied the benefit sought on appeal. In November 2015, the Veteran testified before the undersigned during a Board hearing held via videoconference capabilities. The Board hearing was sufficient to fulfill his right to a hearing under 38 C.F.R. § 20.700(a) (2015). A copy of the hearing transcript has been associated with the claims folder. At the hearing, additional evidence was submitted with a waiver of initial consideration of it. See 38 C.F.R. § 20.1304 (2015). During the pendency of this appeal, the Veteran's claims folder was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDING OF FACT The preponderance of the competent evidence is against a finding that the Veteran's current diagnosed obstructive sleep apnea first manifested during his period of service, or is otherwise related to his period of service, to include his in-service complaints of trouble sleeping. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By a correspondence dated in June 2011, the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the Veteran to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. The Veteran has also received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice was completed prior to the initial AOJ adjudication of the claims. Importantly, the Board notes that the Veteran is represented in this appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the claims such that the essential fairness of the adjudication is not affected. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his relevant post-service VA treatment records, and identified private treatment records as well as his lay statements of observation and argument have been obtained. The Veteran has not identified any outstanding evidence, to include any other medical records that are available and could be obtained to substantiate his claim. VA has afforded the Veteran with a May 2014 VA examination relating to his service connection claim for sleep apnea. In the examination report, the VA examiner recorded the Veteran's reported history as well as the findings from clinical examination, and the VA examiner provided a medical opinion on the etiology the Veteran's claimed disorder. The VA examiner's medical opinion was based on a review of the claims folder, including the findings from clinical evaluation, and supported the medical conclusion with a rational statement. The Board finds that the May 2014 VA examination report is adequate for VA adjudication purposes. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he has had the opportunity to testify before a member of the Board. The record reflects that at the November 2015 Board hearing, the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claim. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See 38 C.F.R. § 3.103(c)(2). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the issue has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. Service Connection 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; 38 C.F.R. § 3.303. 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. Id. In general, to prevail on the issue of service connection, a claimant 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, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran seeks entitlement to service connection for obstructive sleep apnea. He believes that his sleep apnea is a result of the traumatic experiences he suffered from when he participated in combat while he was stationed in Korea. He contends that his traumatic experiences have greatly affected his sleep. The Veteran testified that he was assigned to an artillery unit and he was not able to have more than a few hours of sleep a day, because he was continuously on guard duty. He reported that since serving in Korea, he has suffered from frequent nightmares, night sweats, night walking, loud snoring, and trouble sleeping, and he has continued to experience similar sleep problems since service. See June 2011 statement in support of the case, October 2012 notice of disagreement, and November 2015 Board hearing transcript. With respect to element (1), the medical evidence of record demonstrates that the Veteran has current diagnosis of obstructive sleep apnea. See the report of a February 2011 private sleep study evaluation, as well as May 2014 VA examination and VA treatment records. Element (1), current disability, has been satisfied. The remaining questions on appeal are whether the evidence of record supports element (2) in-service disease or injury, and element (3) a medical nexus between current disability and in-service disease or injury. A review of the Veteran's service treatment records is negative for complaints or diagnosis of obstructive sleep apnea. The record does show that the Veteran complained of frequent trouble sleeping on his April 1990 report of medical history prior to separation; however, his April 1990 examination report showed no finding of sleep apnea. None of the subsequent service treatment records reflect any further complaints of sleep problems or indication of obstructive sleep apnea. Post-service treatment records reflect that in February 2011, the Veteran presented with complaints of excessive daytime sleepiness, loud snoring, and difficulty maintaining sleep. He underwent a sleep study, which revealed findings to support a diagnosis of obstructive sleep apnea. Subsequent VA treatment records show that the Veteran was prescribed a C-PAP machine to treat his symptoms. The available medical records do not indicate when the Veteran's sleep apnea symptoms first manifested. There is no medical evidence showing that the Veteran's current sleep apnea existed during his period of service. See 38 C.F.R. § 3.303. Although the Veteran marked at the time of his service discharge examination that he suffered from frequent trouble sleeping, he failed to report further symptoms indicative of obstructive sleep apnea. Moreover, the Veteran's current diagnosis of sleep apnea comes more than a two decades after his separation from service. A finding of in-service disease has not been shown. However, the Board cannot ignore that the Veteran indicated that he suffered from frequent trouble sleeping during his period of service. Moreover, the Veteran has provided competent lay evidence that his current sleep problems first manifested during his period of service. As such, element (2), in-service injury has been established. The Board will now discuss element (3), nexus or relationship, between the Veteran's current diagnosed sleep apnea and his in-service complaints of sleeping problems. Here, the only medical opinion of record weighs heavily against the Veteran's claim. In the May 2014 VA examination report, the VA examiner stated that based on a review of the evidence of record, including the Veteran's reported history and his service treatment records , it was less likely than not that the Veteran's current obstructive sleep apnea was related to his period of service, to include his complaints of sleeping problems. The VA examiner noted that there was no evidence of further symptoms to demonstrate an onset sleep apnea in the service treatment records. At the time of his separation examination, his clinical evaluation was normal, and the clinical summary of the Veteran's condition did not reference a condition associated with the complaints of "trouble sleeping." The VA examiner further noted that the Veteran was not diagnosed with obstructive sleep apnea until two decades after his separation from service. The VA examiner found that the evidence failed to show the link between the trouble sleeping he reported at discharge in 1990 and the current sleep apnea. The VA examiner concluded that the Veteran's obstructive sleep apnea was less likely than not related to his period of service. The Board finds that the VA examiner's medical opinion is highly probative in this matter, because it is based off of a review of the claims folder, including the Veteran's reported medical history and service treatment records. The VA examiner's medical conclusion heavily weighs against the Veteran's claim for service connection. There is no contrary medical opinion of record. The Board has also considered the Veteran's own assertions that his current diagnosed sleep apnea is related to his period of service. The Board is aware that lay statements may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to diagnosis in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Here, the VA examiner concluded that there was no evidence of sleep apnea shown during the Veteran's period of service and he was not diagnosed with obstructive sleep apnea until two decades after his separation from service. The Board has considered the Veteran's report that he was informed of his loud snoring and restless sleeping by his wife shortly after his separation from service. The Board observes that these symptoms may be considered characteristic of sleep apnea. Lay statements are competent evidence when based on one sees and feels, such as the onset and symptoms of snoring and sleeping problems. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2). The Board, however, retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006). Here, the record contains conflicting statements from the Veteran regarding the onset and continuity of his obstructive sleep apnea complaints. In this regard, the record does not show that the Veteran reported the onset and continuity of his sleep apnea problems since service until after he initiated his claim for service connection in a June 2011 statement in support of the case. Notably, since 1991, Veteran has filed several claims for VA disability benefits, but he did not mention any sleep-related problems until he first filed his claim for obstructive sleep apnea in 2011. In light of the lack of reports of continuity of symptoms since service until 2011, the Board has to question the credibility of the Veteran's current assertions of onset and continuity of symptoms. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Based on the Veteran's conflicting statements, and given the interest of bias for monetary benefits, the Board finds that the Veteran's current assertions are not credible to the extent that he reports that the onset and continuity of his current symptoms. His statements cannot be used as evidence of onset or continuity of symptomatology since service to support an award of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Moreover, the more probative medical evidence has ruled out a medical link between the Veteran's current diagnosed sleep apnea and his in-service complaints of trouble sleep. The VA medical opinion was based upon a review of the medical evidence of record, which included the Veteran's reported history. Accordingly, element (3), nexus or relationship between the current diagnosed disorders and injury in service or service-connected disability, have not been satisfied, and the Veteran's service-connection claims fails on this basis. The benefit of the doubt rule is not for application because the evidence is not in relative equipoise. ORDER Entitlement to service connection for obstructive sleep apnea is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs