Citation Nr: 1621554 Decision Date: 05/31/16 Archive Date: 06/08/16 DOCKET NO. 09-37 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2001 to May 2005. This matter comes before the Board of Veterans' Appeals (BVA" or "Board") on appeal of a September 2008 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO") in Montgomery, Alabama in which the RO denied the issue on appeal. A timely Notice of Disagreement ("NOD") was received from the Veteran in May 2009. After a Statement of the Case was issued in August 2009, the Veteran perfected his appeal in September 2009, via VA Form 9 substantive appeal. The Veteran's September 2009 substantive appeal reflects that he initially requested that a Board hearing be scheduled in this matter. In December 2010 and February 2011, however, the Veteran notified the RO that he withdrew his request and requested a decision on his appeal. 38 C.F.R. § 20.704(e) (2015); see December 2010, February 2011 and October 2012 Statements in Support of Claim. For the record, this appeal was processed using the Veteran's Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the claim. FINDINGS OF FACT 1. The evidence of record reveals that the Veteran has had chronic sleep impairment since his separation from service. 2. The evidence of record reveals that the Veteran currently has diagnoses of, among other things, posttraumatic stress disorder and sleep apnea. 3. By letter dated in September 2015, VA informed the Veteran that he was being scheduled for a VA examination. 4. Without good cause, the Veteran failed to report for the VA examination scheduled in December 2015. 5. The preponderance of the evidence of record is against finding that the Veteran's sleep apnea is related to service or with an injury or disease of service origin. 6. The evidence of record reveals that chronic sleep impairment is one of the symptoms associated with the Veteran's posttraumatic stress disorder. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board must initially discuss whether VA has complied with its duties to notify and assist the Veteran in substantiating his sleep apnea claim. In this respect, the Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim 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, 3.326(a), 3.655 (2015). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter sent to the Veteran in May 2008 advised him as to what information or evidence was necessary to substantiate his service connection claim, his and VA's respective responsibilities in obtaining such evidence and information, and how VA determines disability ratings and effective dates. The May 2008 VCAA letter was sent prior to the rating decision in September 2008. Therefore, VA fulfilled its duty to notify. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In regards to this duty, the Board finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board (even though he decided not to do so). It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration ("SSA") disability benefits such that a remand to obtain his SSA records is required. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed below in greater detail, a letter from the RO dated in September 2015 was mailed to the Veteran and informed him that a VA examination was being scheduled in connection with his claim. The Veteran acknowledged receipt of the letter sent by the RO, as he contacted VA in October 2015 about the letter and indicated at that time he was unaware of a pending claim with VA. See October 2015 Report of General Information Sheet. Subsequently, a VA examination was scheduled in December 2015 in connection with the Veteran's sleep apnea claim. On the date of the examination, the Veteran failed to report. Thus, evidence which was expected from this examination could not be obtained. Neither the Veteran nor his service representative has shown good cause for the Veteran's failure to report for his examination. The Court has held that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. §§ 3.655(a) - (b). In view of the foregoing, the Board concludes that there is no duty to attempt to provide another examination or medical opinion. And, as VA has fulfilled the duty to notify and assist to the extent possible, the Board can consider the merits of this appeal without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). No further action needs to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection In a statement received by the RO in April 2008, the Veteran sought service connection for "chronic sleep apnea with extremely bad dreams from war experience." See Statement in Support of Claim received in April 2008; see also June 2008 Statement in Support of Claim. For reasons set forth below, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for sleep apnea. Therefore, the appeal must be denied. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 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. 38. U.S.C.A. § 11102; 38 C.F.R. § 3.304; see also Shedden v. Principi, 381 F.3d 1163 (Fed Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38. U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.3.09(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). Id. Because sleep apnea is not specifically listed as a chronic disease under 38 C.F.R. § 3.3.09(a), the theory of continuity of symptomatology is not applicable to the Veteran's service connection claim. Turning to the issue on appeal, post-service medical evidence reveals that the Veteran has a current diagnosis of sleep apnea. Sleep apnea is a serious sleep disorder that occurs when a person's breathing is interrupted during sleep. People with untreated sleep apnea stop breathing repeatedly during their sleep, sometimes hundreds of times. See Sleep Apnea Basics from WebMD at www.webme.com/sleep-disorders/sleep-apnea/sleep-apnea. See also 38 C.F.R. § 20.903(b)(2) (2015). In this case, the Veteran was seen for a pulmonary consult related to post-service sleeping problems in December 2008. During the consult, the Veteran reported symptoms of loud snoring; insomnia; a 25 pound weight gain since leaving Iraq; and concerns that he was very athletic before Iraq but was inactive now. It was recommended at that time that the Veteran be scheduled for a sleep study. See VA treatment records dated in December 2008. VA treatment records in the Virtual VA records indicate that the Veteran underwent sleep studies in January 2009 and March 2009, after which he was diagnosed with sleep apnea. See May 2009 VA treatment records. A review of the Veteran's service treatment records shows two complaints of sleep impairment. Specifically, the Veteran reported in his February 2005 post-deployment health assessment that he still felt tired after sleeping. Also, in his May 2005 Service Separation Examination Report, he indicated in the "nervous trouble of any sort" portion of the examination that he had frequent trouble sleeping. In explaining that answer, the Veteran wrote that his problem with sleeping was that "it [took] a long time [for him] to go to sleep." See May 2005 Service Separation Examination Report. Neither of the symptoms reported by the Veteran in his service records were ultimately associated with a diagnosis of sleep apnea or any other sleep disorder during service. In addition, as will be discussed below, neither of the Veteran's in-service sleep impairment symptoms have been linked to any post-service diagnosis of sleep apnea or any other sleep disorder. Turning to the question of a nexus, the claims file contains numerous post-service medical records addressing treatment for the Veteran's sleep apnea. See VA medical records. A review of these records reveals that none of the Veteran's treating clinicians have related the Veteran's sleep apnea to service or any sleep symptomatology in service, despite the Veteran's claims otherwise. See September 2009 VA Form 9 (the Veteran claims that his claims file contains an "opinion of the condition [sleep apnea] having its onset while in service"). To the extent that the Veteran reports he had sleeping problems in-service and post-service, he is competent. However, the Veteran is not competent to connect his in-service or post-service sleep symptomatology to his presently diagnosed sleep apnea since sleep apnea is not a disorder that can be easily identified by a layperson. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay 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). In this case, the Veteran is not competent to identify the medical condition of sleep apnea. This condition is diagnosed by medical clinicians who conduct sleep studies to determine whether or not a person has the sleep disorder, based upon symptomatology reported by the patient. In this instance, the Veteran underwent a sleep study after complaining of loud snoring; insomnia; a 25 pound weight gain since leaving Iraq; and concerns that he was very athletic before Iraq but had since became inactive. See VA treatment records dated in December 2008. There are no reports of snoring problems, problems with weight gain or concerns about inactivity in the Veteran's service treatment records. See, e.g., December 2008 VA treatment records. To the extent that the Veteran's in-service statements (that he still felt tired after sleeping and had difficulty falling asleep) could be construed as insomnia related to the Veteran's sleep apnea, the Veteran has not presented any competent medical evidence linking these symptoms or the Veteran's current sleep apnea to service. The Veteran was given the opportunity in December 2015 to obtain a nexus opinion concerning the contended etiological link between his sleep apnea and active service. However, he failed to report for the December 2015 VA examination that was scheduled in relationship to this claim. See 38 C.F.R. § 3.655. Thus, while the Veteran currently has sleep apnea, there is no nexus evidence linking his sleep apnea to his period of active service. However, for the record, a review of all the evidence appears to indicate that the Veteran's in-service and post-service sleep symptomatology are related to another disability the Veteran suffers from, specifically his service-connected PTSD. In this regard, medical records in the claims file dated in 2007 and 2008 reveal that the Veteran was seen for an initial mental health consultation in April 2007 because of, among other things, sleep problems. April 2007 VA medical records. In a screening assessment for the PTSD program in May 2007, the Veteran reported that his two primary problems were nightmares and poor sleep. See VA medical records dated in April 2007 and May 2007. In November 2007, the Veteran reported that he had difficulty sleeping since he came back from Iraq; that he was not currently sleeping; and that he "battle[d] with [his] mind all night." See November 2007 VA medical records. The following year, he reported that he continued to have problems in terms of sleeping and nightmares. See VA medical records dated in January 2008 and April 2008. In April 2008, the Veteran complained again of difficulty sleeping and waking up during the night feeling like he "just woke up out of the war zone." See April 2008 VA medical records. In a July 2008 hospitalization discharge summary, the Veteran was diagnosed with, among other things, PTSD. The VA psychiatrist who discharged the Veteran noted that he was currently reporting multiple symptoms of PTSD [that included] difficulty sleeping. See July 2008 VA treatment record. In June 2010, the Veteran was afforded a VA examination. After conducting a complete examination, the VA examiner reported that the Veteran's difficulty falling or staying asleep was a persistent symptom of increased arousal. He diagnosed the Veteran with chronic PTSD, Major Depressive Disorder and Panic Disorder. See June 2010 VA examination report; see also October 2013 VA examination report (the Veteran reported during his VA examination that he experienced difficulty falling and/or staying asleep. He was diagnosed with PTSD, a symptom of which was chronic sleep impairment). Service connection for PTSD was granted in a December 2011 rating decision. In making this decision, the RO assigned an evaluation of 70 percent based upon evidence of, among other things, symptoms of chronic sleep impairment. See December 2011 rating decision, p. 2. Thus, the Veteran's chronic sleep impairment was not only observed and reported by his mental health treatment providers as symptomatology consistent with a diagnosis of PTSD, this symptomatology was specifically taken into consideration when the Veteran was granted service connection and assigned a 70 percent disability rating. Based upon the reasons set forth above, the Board finds that the Veteran's in-service and post-service sleep impairment are related to the Veteran's service connected PTSD. Accordingly, as the preponderance of the evidence is against the claim of service connection for sleep apnea claim, the appeal is denied. ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs