Citation Nr: 1620990 Decision Date: 05/24/16 Archive Date: 06/02/16 DOCKET NO. 13-15 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from November 1972 to November 1992. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In May 2015, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further development. FINDING OF FACT Current sleep apnea is unrelated to the Veteran's period of active service, and sleep apnea is not due to or aggravated by service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for sleep apnea, including as due to service-connected disabilities, is not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102. 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1) (2015). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a June 2010 letter, the AOJ notified the Veteran of information and evidence necessary to substantiate his claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the letter, Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The AOJ satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. In July 2010, the Veteran was afforded a VA examination and, in July 2012 and June 2014, medical opinions were obtained; and, the medical reports are of record. The purpose of the Board's May 2015 remand was to obtain VA medical records since September 2014 and an addendum opinion from the June 2014 VA physician-examiner as to whether sleep apnea was caused by military service or service-connected disabilities (hypertension, residuals of ligation of the liver, erectile dysfunction associated with hypertension, hypertensive and arteriosclerotic retinopathy, and medications for these disabilities) or if the sleep apnea was aggravated by the service-connected disabilities. There was substantial compliance with the Board's remand as a medical opinion was obtained in September 2015 from the June 2014 VA examiner and VA medical records, dated to June 2015, were obtained. The September 2015 VA medical opinion is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, provided clinical findings and diagnoses, and offered etiological opinions with rationale from which the Board can reach a fair determination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The September 2015 opinion cured the deficiencies in the earlier opinions; hence, the Board insured that its remand instructions were complied with. The Board's duties to notify and assist were met in this case II. Facts and Analysis Contentions The Veteran contends that he has sleep apnea due to active service, including a motor vehicle accident, or to his service-connected disabilities. See November 2010 notice of disagreement. In December 2010, the Veteran reported that he had a head injury in service. In his May 2013 substantive appeal, the Veteran said that he was hit hard on the chin in his accident that he believed affected his breathing. He did not go to sick call, because he did not know he had it, and no one asked about it. In service, he attributed his tiredness and fatigue to shift work and deployments. Service connection for hypertension, residuals of ligation of the liver, and hypertensive and arteriosclerotic retinopathy was granted by the RO in a May 1993 rating decision. The August 2010 decision granted service connection for erectile dysfunction associated with hypertension. Laws and Regulations A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, evidence 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases, but not sleep apnea, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). In addition, disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede aggravation unless the baseline level of the non-service connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability. 38 C.F.R. § 3.310(b). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A lay person is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, but not to provide evidence as to more complex medical questions such as the origin of respiratory pathology as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis The Veteran's service treatment records do not discuss sleep apnea or breathing problems. The records describe his treatment after a motor vehicle accident in May 1979. He was seen with possible loss of consciousness, abrasions over his hands and knees, and a chin laceration. While hospitalized, he was treated for a liver laceration and underwent a hepatic vein ligation. Later-dated May through July 1979 clinical records report that he was doing well and was released to full duty. In July 1979 and subsequently, the Veteran was deemed medically qualified for flying or special operational duty. During a January 1980 annual flight physical, the Veteran reported that he had experienced a full recovery from the motor vehicle accident; and denied any significant interval medical or surgical history. In November 1980, he gave the same report. In February 1991, the Veteran was medically restricted from flying due to elevated blood pressure. During an April 1991 service examination, the Veteran denied trouble sleeping. A May 1991 physical profile shows that he had uncontrolled hypertension and was ineligible for deployment. Post service VA medical records reveal that, in September 2005, the Veteran told his primary care physician that he was having sleep problems, and that his wife said he had stopped breathing at night. These complaints had not been reported at the previous evaluation in December 2003. In December 2005, the Veteran was referred for evaluation of possible sleep apnea. He had hypertension and wanted to know if the treatment of sleep apnea would help hypertension. The Veteran snored, had witnessed apnea, and did not feel sleepy during the day. He had no previous history of definite obstructive sleep apnea. The impression was witnessed apneas, and a need to rule out obstructive sleep apnea. A nocturnal polysomnogram performed by VA in April 2006 revealed obstructive sleep apnea. In a May 2010 statement, the Veteran's daughter recalled his history of snoring and possibly not breathing since 1986. In July 2010, the Veteran underwent VA examination. The Veteran snored with periods of intermittent apnea and had since the service. He was told he snored with periods of apnea for several years prior to that. The Veteran reported that, while in the service, he was awakened to be told he snored quite loudly. Sleep studies performed in December 2005 diagnosed obstructive sleep apnea. In the examiner's opinion, obstructive sleep apnea was less likely as not (less than a 50/50 probability) caused by or a result of service-connected hypertension. The nurse practitioner's rationale was per an UpToDate Online article on "Overview of Obstructive Sleep Apnea in Adults": "Definite risk factors for [obstructive sleep apnea] include obesity and craniofacial or upper airway soft tissue abnormalities, while potential risk factors include heredity, [current] smoking, and nasal congestion." Further "In patients with diabetes or insulin resistance, obstructive sleep apnea is nearly three times more prevalent compared to the general population." In December 2010, the Veteran submitted an article from the Journal of Rehabilitation Research & Development on sleep apnea, traumatic brain injury, and dementia. See JRRD, vol. 46, no. 6, 2009, pp 837-850. In January 2011, he submitted an article on sleep apnea from Men's Health. In July 2012, a VA physician-examiner reviewed the Veteran's medical records and opined that the Veteran's sleep apnea was less likely than not (less than a 50 percent probability) incurred in active service, including the motor vehicle accident and subsequent injuries. The examiner noted the letter from the Veteran's daughter that he had sleep apnea symptoms in 1986, but review of all service treatment records from 1972 to 1992 did not show any complaints of daytime sleepiness, snoring, or witnessed apnea episodes prior to 2005. The examiner observed that, on a January 5, 1984 Flight Physical examination report, an examiner noted that the Veteran had surgery at age 30 for a lacerated liver secondary to an auto accident with full recovery, and "NCNS (No Complications, No Sequelae)". According to the examiner, this stated that the Veteran was not experiencing any complications or sequelae of the auto accident. The examiner commented that a review of VA medical records showed that Veteran asked his primary care physician about sleep apnea in 2005, and that his wife at that time had witnessed apnea episodes. A sleep study was done on April 12, 2006 and showed obstructive sleep apnea. In June 2013, the Veteran's daughter, who was born in 1977, reported that she started to observe his snoring and noticing that he stopped breathing for short periods when she was aged 5 to 8. She recalled his afternoon napping before she was a pre-teen. Further, in June 2013, the Veteran submitted Internet articles, including from Medline Plus, regarding the side effects of various prescription medications. An article from the National Heart, Lung, and Blood Institute indicates that sleep apnea often went undiagnosed. An article from the Mayo Clinic staff states that obstructive sleep apnea is relatively common in people with hypertension. A partial article from MedicineNet.com indicates that sleep apnea could cause or worsen high blood pressure and heart problems. The Veteran also submitted a copy of an August 2008 Board decision that granted service connection for sleep apnea in another veteran's case. In June 2014, a VA physician-examiner reviewed the Veteran's medical records and opined that the Veteran's sleep apnea, diagnosed in 2006, was less likely than not (less than a 50 percent or greater probability) proximately due to or the result of medications taken for service-connected hypertension. The examiner's reasoning was that obstructive sleep apnea, "as the name implied," was due to a temporary physical obstruction in the airways. The relationship between obstructive sleep apnea and hypertension was that the nocturnal oxygen desaturations from the obstructive sleep apnea caused a chain of physiologic events that can lead to hypertension. The examiner observed that the known risk factors for obstructive sleep apnea were age, male gender, obesity, craniofacial and upper airway abnormalities, smoking, nasal congestion, congestive heart failure, end stage renal disease, strokes, hypothyroidism, and acromegaly. Known medication risks were alcohol, benzodiazepines and narcotics. The examiner provided citations to current medical literature for these facts. The examiner noted that the Veteran included a number of documents (articles) that he mistakenly interpreted as demonstrating that his hypertension medications caused his obstructive sleep apnea. Fosinopril can cause fatigue and excessive tiredness. The Veteran labeled this a "trigger for apnea" but the examiner stated that this was medically incorrect. "Difficulty breathing" in the list of serious adverse effects was also not a synonym for sleep apnea. The same comments applied to terazosin being able to cause fatigue or dyspnea, and nifedipine, amlodipine, and hydrochlorothiazide possibly causing dyspnea. In September 2015, the same physician referenced her June 2014 opinion, and explained the nature of obstructive sleep apnea and its risk factors, citing to medical literature. The examiner found that none of the articles submitted by the Veteran rose to the level of probative medical evidence. The examiner explained that there was a "hierarchy of medical evidence" and that the "highest" levels of evidence came from peer-reviewed medical journals with studies that were meta-analyses or controlled clinical trials. In the examiner's opinion, the Veteran's sleep apnea was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. According to the examiner, there was no direct or indirect medical evidence available that the Veteran had obstructive sleep apnea in service. Hypertension was not sufficient evidence to prove obstructive sleep apnea. There were no service treatment records that document visits for unrefreshing sleep, insomnia, and fatigue. The examiner noted that the Veteran consistently denied problems sleeping on repeated physicals, and found that this would have been one of the key symptoms. The examiner added that no indirect evidence existed that the Veteran displayed daytime somnolence that would have prevented his piloting. The examiner explained that, in service the Veteran's weights (in pounds) were in the 130s and 140s, and his sleep apnea was diagnosed when his weight was in the mid-170s, at least a 30 percent gain. While the Veteran was certainly not obese, additional adipose tissue in the neck was one of the most common reasons for the development of obstructive sleep apnea. The examiner opined that sleep apnea was less likely than not (less than a 50 percent probability) proximately due to or the result of the Veteran's service-connected disabilities, as this was not medically plausible. The examiner noted that the relationship between hypertension and sleep apnea was explained in the previous opinion (an apparent reference to the June 2014 opinion). While sleep apnea could make hypertension more difficult to control, the reverse was not true. Hypertension did not plausibly cause or aggravate sleep apnea. In the examiner's opinion, no sleep apnea was documented prior to April 2006 and it was not aggravated beyond its natural progression by a service-connected disability. The examiner reiterated that this was medically implausible. Obstructive sleep apnea was due to a temporary physical obstruction in the airways. There was no basis in medical fact to assert that the Veteran's remote, completely healed hepatic vein ligation, hypertension, erectile dysfunction associated with hypertension, hypertensive and arteriosclerotic retinopathy, or medications for these, could cause such an obstruction The Veteran and his daughter are competent to describe his observable symptoms, such as excessive drowsiness or sleep difficulty. To the extent he is claiming that sleep problems have persisted since service, this is inconsistent with his reports at the time of his separation from service, the normal examination in April 1991, prior to separation, and the fact that he did not report sleep apnea when he filed his initial claim for VA benefits in January 1993 or report any pertinent problems when given a general evaluation during VA treatment in December 2003. The initial documented reports of sleep apnea occurred in 2005, nearly 23 years after discharge. At that time, the Veteran apparently did not report any long standing history. While the Veteran's daughter reported observing symptoms; the probative value of her observations is lessened by her very young age. It is also worth noting that while she wrote that she was not alarmed by seeing her father stop breathing; it was the observation of this symptom by her mother that triggered the Veteran's visits to VA in 2005. If the symptom had been present years or decades earlier, it should have trigged the same concern evidenced in 2005. As recently as a VA examination in July 2010, the Veteran reported sleep apnea as a condition occurring after service. Hence, his reports of symptoms beginning in service and continuing since are not deemed credible. Moreover, sleep apnea is not among the listed chronic diseases, and a continuity of symptomatology could not establish a link between that disease and service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The most probative evidence of record is the opinion of the June 2014 VA examiner, who in September 2015, opined that it was less likely than not that the Veteran's sleep apnea was related to his military service, including his service-connected disabilities. The examiner provided a clear rationale to support the findings. That opinion is entirely consistent with the July 2012 VA opinion. The medical literature submitted by the Veteran contains no specific findings pertaining to his manifestation of sleep apnea. See e.g., Sacks v. West, 11 Vet. App. 314, 317 (1998). As alluded to by the examiner, it suggests that sleep apnea could affect hypertension, but not the opposite. The August 2008 Board decision submitted by the Veteran includes a favorable medical opinion on which the Board relied to grant service connection for sleep apnea. In this Veteran's case, there is no such medical opinion. The Veteran's opinion that he has sleep apnea due to the motor vehicle accident in service or to his service-connected disabilities is of little probative value. Neither he nor his daughter is shown to possess the medical expertise needed to say what caused him to develop sleep apnea. The VA examiners do possess the necessary expertise. Their opinions reflect consideration of an accurate history, and are consistent with cited medical literature. They are of significant probative value. There has been no medical opinion or literature that would support the Veteran's theories. In light of all of the above, the Board finds that a clear preponderance of the evidence of record is against the Veteran's claim for service connection for sleep apnea, including as due to service-connected disabilities, and his claim must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for sleep apnea, including as due to service-connected disabilities, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs