Citation Nr: 1628587 Decision Date: 07/18/16 Archive Date: 07/28/16 DOCKET NO. 13-26 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for sleep apnea, to include claimed as secondary to service-connected disease or injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from February 1967 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim on appeal in August 2015 for further development. The case has been returned to the Board for appellate consideration. 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). FINDING OF FACT The Veteran's current sleep apnea did not have its onset in service and was not otherwise attributable to disease or injury sustained therein; sleep apnea was not caused or aggravated by a service-connected disease or injury. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that he has sleep apnea that started during his period of service. Alternatively, he asserts that sleep apnea is due to a service-connected disability. As discussed below, the evidence weighs against a finding that sleep apnea had its onset during service, is attributable to disease or injury sustained in service, or is otherwise proximately due to or the result of or aggravated by a service-connected disability. While an April 1967 service treatment record documents notation of a sinus condition N.C.D. (not considered disabling), the service treatment records contain no complaints of, treatment for or diagnosis of sleep apnea. Therefore, neither sleep apnea nor any symptoms reasonably attributed thereto were noted in the service treatment records. Post-service private and VA medical records verify that the Veteran has a current diagnosis of sleep apnea. Specifically, a November 2011 sleep study noted severe obstructive sleep apnea. Therefore, a current disorder is shown. Thus, the remaining inquiry is whether the sleep apnea was related to service or service-connected disease or injury. The evidence does not link sleep apnea to a service-connected disease or injury. In an August 2014 VA examination, the examiner opined that sleep apnea was less likely than not proximately due to or the result of service-connected generalized anxiety disorder. The examiner provided comprehensive review of the medical literature, noting the epidemiology and pathophysiology of sleep apnea. The examiner explained that the current medical literature showed no evidence that anxiety caused sleep apnea. Noting the risk factors of obstructive sleep apnea including obesity, craniofacial abnormalities, upper airway soft tissue abnormalities, heredity, smoking, nasal congestion and diabetes, the examiner concluded that the Veteran's greatest risk factor for sleep apnea was obesity. In a February 2016 VA examination, the examiner opined that sleep apnea was less likely than not proximately due to or the result of service-connected diabetes mellitus. The examiner explained that at the time of his initial sleep study the Veteran weighed 262 pounds and had a body mass index (BMI) of 39.2 which was considered morbidly obese. Acknowledging previous medical literature listed diabetes as a potential risk factor for development of obstructive sleep apnea, the examiner reported that current medical literature found instead that obstructive sleep apnea was a risk factor for development of diabetes. To that end, the examiner commented that risk factors for development of obstructive sleep apnea, per current medical literature, included advancing age, male gender, obesity, craniofacial or upper airway soft tissue abnormalities, smoking, nasal congestion, menopause and family history. The examiner reiterated that diabetes was not a risk factor for sleep apnea and confirmed that the Veteran's service-connected diabetes did not cause his obstructive sleep apnea. Rather, the examiner explained that the Veteran was morbidly obese and had other risk factors including his gender, neck size and chronic asthma. Further, the examiner provided comprehensive review of the medical literature, noting the epidemiology and pathophysiology of sleep apnea. The examiner also concluded that the Veteran's sleep apnea was not aggravated by or permanently worsened by his service-connected generalized anxiety disorder or diabetes. In this regard, the examiner noted that sleep studies performed after the initial diagnosis indicated no progression of the obstructive sleep apnea. Similarly, the weight of the lay and medical evidence does not support a link between the current diagnosis of sleep apnea to a period of service. Of note, the evidence does not reflect an in-service incurrence or injury despite any assertions to the contrary. This finding is supported by the fact that the Veteran sought treatment for a myriad of other medical complaints but never mentioned sleep apnea or trouble with sleep. Rather, the evidence reflects that he reported symptoms and was first diagnosed with sleep apnea in 2011, more than 40 years after discharge from service. The passage of many years between discharge from active service and the onset of symptoms is a factor that tends to weigh against the claim. Additionally, the Veteran sought treatment for a myriad of medical complaints since discharge from service, including a psychiatric disorder and diabetes mellitus. Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to sleep apnea. In addition, there is no competent or credible evidence or opinion that even suggests that there exists a medical relationship, or nexus, between the current sleep apnea and a period of the Veteran's service or a service-connected disease or injury. Further, the Board reiterates that competent VA examiners have attributed sleep apnea to obesity. The Board has considered the Veteran's general lay assertions of a relationship between sleep apnea and service. While he is competent to state that he has obstructive sleep apnea which is confirmed by the record, as a lay person he is not competent to establish that his sleep apnea onset due to disease or injury sustained during service or service-connected disease or injury. The question regarding the etiology of such a disability involves the ruling in or out of multiple potential etiologies and is complex medical issue that cannot to be addressed by a layperson. In that regard, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence that would support a claim for service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For the foregoing reasons, the appeal is denied. 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. Finally, the Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VCAA applies to the instant claims. VA is required to notify the claimant and his or her representative of any information, and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify was satisfied by letter sent to the Veteran in April 2012. The claim was last adjudicated in February 2016. The duty to assist the Veteran has also been satisfied in this case. The service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board. He has not identified any other outstanding records that are pertinent to the issue currently on appeal. In addition, the Veteran was afforded VA examination in connection with his claim. The VA examination and the medical opinion obtained in February 2016 are adequate to evaluate the claim for service connection, as the opinion was predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the claims file. The examiner considered all of the pertinent evidence of record, including the contentions and lay statements and provided a complete explanation for the opinions stated, relying on and citing to the records reviewed. VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). See Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion" ). The appeal was remanded to the RO in August 2015. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The remand directed that the Agency of Original Jurisdiction (AOJ) schedule the Veteran for an examination to determine the nature and etiology of his sleep apnea. He underwent an examination in February 2016 and the physician opined as to the nature and etiology of the Veteran's sleep apnea. Accordingly, there has been substantial compliance with the remand and the Board properly adjudicated this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. ORDER Service connection for sleep apnea, to include claimed as secondary to service-connected disease or injury is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs