Citation Nr: 1637888 Decision Date: 09/27/16 Archive Date: 10/07/16 DOCKET NO. 09-38 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1975, from January 2003 through January 2005, from March 2006 through May 2006, from September 2007 to September 2008, from July 5, 2009, through July 26, 2009, and from February 2010 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, that denied entitlement to service connection for sleep apnea. The Veteran, accompanied by his representative, testified at a video conference hearing before the undersigned Veterans Law Judge in November 2011. A transcript of these proceedings has been associated with the Veteran's claims file. The Veteran's claim was remanded by the Board in January 2012 and again in February 2015 to the Agency of Original Jurisdiction (AOJ) for additional development. As the requested medical opinion was obtained, the Board finds the directives have been substantially complied with, and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA electronic records system. FINDINGS OF FACT 1. The Veteran's current sleep apnea is not related to his period of active service from July 1973 to July 1975 or from January 2003 through January 2005. 2. The Veteran's current sleep apnea pre-existed his period of active service from March 2006 through May 2006, from September 2007 to September 2008, from July 5, 2009, through July 26, 2009, and from February 2010 to January 2011. 3. The Veteran's sleep apnea that pre-existed his period of active service from March 2006 through May 2006, from September 2007 to September 2008, from July 5, 2009, through July 26, 2009, and from February 2010 to January 2011 did not increase in disability due to disease or injury during these periods of active service nor was any increase beyond the natural progress of the sleep apnea shown. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by service from July 1973 to July 1975 or from January 2003 through January 2005. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306 (2015). 2. Sleep apnea clearly and unmistakably pre-existed and was not aggravated by service from March 2006 through May 2006, from September 2007 to September 2008, from July 5, 2009, through July 26, 2009, and from February 2010 to January 2011. The presumption of soundness at entry is rebutted. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2014); 38 C.F.R. §§ 3.303 , 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). A. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran 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). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA issued a VCAA letter in December 2008, prior to the initial unfavorable adjudications in March and July 2009. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify. B. Duty to Assist The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service, VA treatment records and identified private treatment records with the claims file. On remand, additional VA medical records were obtained. All identified records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). Following the most recent Remand Decision by the Board, VA obtained medical examination and opinions in April 2015 and June 2015 because earlier ones were deemed inadequate. The 2015 opinions indicate that the Veteran's sleep apnea first manifested in June 2005, and was not aggravated by service from March 2006 forward. The Board notes that the examining physician reviewed the claims file in conjunction with formulating the opinions, and provided sufficient supporting rationale. Based on the foregoing, the Board finds the 2015 examination reports to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's claims for service connection for sleep apnea. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and obtained adequate medical opinion, its duty to assist in this case is satisfied. In addition, during the November 2011 Board hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue of service connection on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the appellant's claim. The VLJ issued the aforementioned decisions remanding this matter in part based on the testimony. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. III. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may also be granted for a disease first 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). Additionally, as will be discussed below, the Board finds that the medical evidence indicates that the Veteran had sleep apnea prior to his periods of active service from March 2006 through May 2006, from September 2007 to September 2008, from July 5, 2009, through July 26, 2009, and from February 2010 to January 2011. In this regard, the Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability that the veteran later complains about. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003. The government may show a lack of aggravation by clear and unmistakable evidence that either (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C.A. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In addition, temporary flare-ups, even in service, will not be considered sufficient to establish an increase in severity unless the underlying condition, as contrasted to the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). IV. Factual Background In this case, the Veteran contends that he has sleep apnea that had its onset during active service from September 2007 to September 2008. Buddy statements reflect that symptoms of loud snoring and appearing to stop breathing were observed while he was sleeping during active service in 2006 and 2007. His wife has stated she observed the symptoms in 2008. The Veteran was afforded a VA examination dated in January 2009. He reported that when he came home on weekends (during his deployment) that his wife would tell him that he snored and would push on his back when he stopped breathing. The examiner noted that the Veteran's Army buddies told him that he snored while stationed at Fort McCoy in February 2007. The examiner indicated that the Veteran had a diagnosis of sleep apnea and was prescribed a CPAP machine in November 2008, only two months after his active service deployment ended. After examination, the examiner diagnosed the Veteran with sleep apnea, but found that the condition was not caused by or the result of military service. The examiner explained that the Veteran reported a history of sleep apnea dating to February 2007 which predated his active service. Therefore, the examiner concluded, the Veteran's sleep apnea was not caused by or the result of military service. The examiner also found that there was no evidence that military service exacerbated the Veteran's sleep apnea. The Veteran was also afforded VA examinations dated in March 2010 and September 2011. The March 2010 VA examiner found that the Veteran's sleep apnea was not caused by or the result of zolpidem tartrate which was prescribed during military service. The September 2011 examiner found that there was no medical evidence that the Veteran was treated or evaluated for sleep apnea during active service from February 2010 to January 2011. The Veteran was diagnosed with primary insomnia with sleep apnea, and the examiner opined that this was not aggravated by the Veteran's most recent military service, beyond the normal progression of the condition. The Veteran in this case contends that the January 2009 VA examiner misstated the date of onset regarding his sleep apnea. He contends that he never reported a history of sleep apnea dating to February 2007. Rather, the Veteran testified before the Board that the date of February 2007, relied on by the January 2009 examiner in denying the claim, should really be February 2008. The Veteran testified that a fellow serviceman, a Master Sergeant, noticed the Veteran's loud snoring and his stopped breathing when they were on active duty together. He told the Veteran that he should get some help with the condition. The Veteran testified that this happened in February 2008. The Veteran also stated that the Master Sergeant was a professional that worked with sleep apnea at a hospital when not on active duty, and indicated that he did not go and get tested for this on active duty, since he did not have the time, as he would fly out every week to different locations to work with commanders. The Veteran testified that the date that he told the examiner regarding onset of his condition was February 2008, the date that his fellow servicemen approached him about his snoring and other symptoms. The Veteran's claims file contains a diagnosis of sleep apnea dating to November 2008, two months after his 2007-2008 deployment ended. The claims file also contains statements from the Veteran's spouse dated in December 2008, indicating that the Veteran's snoring got worse when he came home on leave. She reported that the Veteran was restless and not sleeping much, and that the noise was so loud that she would nudge him in the back. The Veteran also submitted a statement from the Master Sergeant noted above, dated in December 2008. He stated that he was deployed with the Veteran and sleeping in the same barracks. He noted that the Veteran snored very loud and almost every night. He and others tried to tell the Veteran that he should get medical help, but that the Veteran denied it until he went to the VA in Minnesota and sought help. The Master Sergeant stated that, before being deployed, he worked in a sleep clinic, so he knew sleep apnea and its symptoms quite well. Finally, the Board notes that the January 2009 examiner, in the report, noted that the Veteran's Army buddies told him that he snored while stationed at Fort McCoy in February 2007. In light of the above, the Board in a March 2012 Remand decision ordered that additional medical opinion evidence be obtained. While examination was conducted in March 2012, it was deemed inadequate, and the matter was remanded again for complete development. The Veteran was afforded an examination for his sleep apnea in April 2015. The examining physician reviewed the Veteran's claims folder. The examiner opined that the current sleep apnea was less likely than not (less than 50% probability) incurred in or caused by any incident of his military service from September 2007 to September 2008. The examiner stated that, even considering the lay statements, there is no evidence to support or suggest that the veteran's diagnosed obstructive sleep apnea (OSA) was incurred in or was otherwise related to any incident of his military service from September 2007 to September 2008. The examiner provided a rationale that discusses the record. She noted that June 2005 records document that the Veteran had gained weight since stopping smoking 3 months prior. He was noted to be obese on examination. He was advised to follow a healthy diet and exercise program. In March 2007 records note the following history: "he is interested in a prescription for wt loss. he has gained at least 50 pounds in the last few years. he lost "quite a bit a weight" last year, but gained it all back. He eats salads with Thousand Island dressing twice a day (about 1 cup). He admits to regular intake of cookies, cake, etc. pt reports that he does snore. He is tired during the day. He falls asleep very easily when he is not actively doing something. He falls asleep quickly. quit smoking since Feb 2005. Smoked 1-2 PPD before he quit. Pt thinks that there are a lot of reasons why he is obese (thyroid, water retention), none of which involve eating too much and exercising too little. Assessment: Obesity; refer for sleep study." The examiner further noted that in April 2007 when evaluated by the dietician, medical records document obesity related to increased calorie intake and decreased physical activity as evidence by BMI of 37.4. His nutrition status was mildly compromised. The assessment was that the Veteran planned to increase his physical activity starting next week when he'll be on active duty. This was encouraged by the dietician. The examiner in April 2015 summarized as follows: Although the veteran's OSA was not officially diagnosed until the sleep study of 11/5/08, it is clear that he had a clinical diagnosis of OSA in March 2007 (PRIOR to active duty of Sept 2007) in view of him exhibiting the classic symptoms of OSA along with significant risk factors of obesity and history of smoking. The provider during his March 2007 visit also documented "suspected obstructive sleep apnea." Obesity is the best documented risk factor for obstructive sleep apnea. The veteran's BMI is greater than 30 which is consistent with obesity. Smokers are nearly 3 times more likely to have obstructive sleep apnea than never smokers. The examiner further found that sleep apnea clearly and unmistakably existed prior to service from September 2007 to September 2008 and it is clear that the condition was not aggravated beyond the normal progress of the disorder during or as a result of that active service. Although the Veteran and his wife stated that his symptoms worsened during this time in active duty this was more likely as not due to the fact that he was experiencing symptoms due to untreated sleep apnea and increased weight gain during this period of deployment. The sleep apnea more likely as not was temporarily exacerbated during this time because of evidence of weight gain during this period of deployment. The examiner explained that increasing weight will exacerbate underlying sleep apnea but once the weight is taken back off, the symptoms of sleep apnea improve. The increased weight did not result in a permanent worsening of his underlying sleep apnea. She noted that the Veteran underwent left knee replacement surgery in March 2008 limiting his exercise ability which would be a risk factor for increased weight gain, however, his ambulation limitations would not be a cause of or aggravation of weight gain since there are available exercise programs such as pool therapy which allows an individual to exercise without increase force or pressure on joints and he could also limit his caloric intake to match his physical activity to prevent weight gain. The examiner further found that sleep apnea clearly and unmistakably existed prior to service from February 2010 to January 2011, and was not aggravated beyond its natural progression by an in-service event, injury or illness during that time. The rationale was as follows: It is clear (highest degree of medical certainty) that a sleep apnea disability was not aggravated beyond the normal progress of the disorder during or as a result of active service from February 2010 to January 2011. Medical records document NO significant change in his weight. He continued to exhibit signs and symptoms of sleep apnea because it was partially treated. The Sleep Note of 10/25/10 noted that he wasn't using CPAP as instructed and was only wearing the mask for a while and wasn't keeping the mask on all night. If the veteran had been compliant with CPAP use, his symptoms would have been much better controlled during this time period. There is no evidence to support or suggest that service events permanently aggravated the underlying sleep apnea. A June 2015 addendum was obtained in light of the lay statements from the Veteran's wife and the Master Sergeants which were not available to the examiner in the prior review. One of the Master Sergeants stated that he had worked in a sleep clinic prior to service and he observed the Veteran snoring while on active duty from March 2006 to May 2006. The examiner was asked whether the Veteran's sleep apnea began during the period of active duty in 2006. The examiner reviewed the file again, to include the lay statements pointed out. The opinion was as follows: After another review of the records, my original opinions from the report of 4/2/15 have NOT changed. It is more likely as not that the veteran began having symptoms consistent with sleep apnea AFTER discharge from the service in 2005. This was due to weight gain from excessive caloric intake and NOT due to any events which occurred while in service. Discharge from service was in Jan 2005 and he presented with complaints of fatigue, malaise and dyspnea with exertion in June 2005. In view of this,, it is more likely as not that the veteran had sleep apnea PRIOR to his active duty of 3/06 - 5/06 and there is no evidence to support or suggest that this period of active duty resulted in an aggravation of the underlying sleep apnea. V. Analysis Because the Veteran had different types of service and because sleep apnea was first identified between periods of service, the analysis varies based upon the differing periods of service. Service beginning in March 2006 To the extent that the presumption of soundness attaches as to the Veteran's period of service beginning March 2006, it has been rebutted by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. This evidence is the April 2015 and June 2015 opinions of the VA examiner outlined above. The examiner in June 2015 notes that her opinion has not changed, and notes that the initial presentation of sleep apnea was in June 2005. She supports her opinion with documentation in the record. The opinion is sound, well-supported and uncontroverted by other medical opinion evidence. The Board deems this clear and unmistakable evidence that the sleep apnea pre-existed service. As to whether the sleep apnea was not aggravated by service, again, the April and June 2015 medical opinions are clear and unmistakable evidence supporting this fact. The 2015 examiner noted that there was no evidence to support that the periods of service from March 2006 onward resulted in aggravation of sleep apnea. The examiner pointed out that the Veteran had gained weight and this could cause an increase in symptoms of sleep apnea but not a worsening of the underlying sleep apnea disease. Although the Board notes the lay statements of record as well as the testimony of the Veteran indicating the Veteran's sleep apnea began in and/or worsened during beginning as early as March 2006 and as late as 2008, neither the service treatment records nor the April and June 2015 examination reports are consistent with this assertion. Such evidence is clear and unmistakable that there was no increase in the pre-existing sleep apnea severity during such periods of service. Moreover, to the extent that the Veteran has stated that he had temporary flare-ups of the sleep apnea during the periods of active service, such temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). Here, it is established that the preexisting sleep apnea did not worsen as opposed to the Veteran exhibiting symptoms of such disability. The VA examiner in 2015 clearly and unmistakably establishes the pre-existing apnea was not aggravated during service. Also, the Board acknowledges the statements of the Veteran and his buddies and wife who have submitted statements in support of his claim and the general assertions as to his underlying sleep apnea having begun in or worsened as a result of active service. While laypersons are competent to report a contemporaneous medical diagnosis and in certain instances opine as to etiology, the general statements that the Veteran's sleep apnea increased in severity in service (as opposed to intermittent flare-ups of symptomatology) does not outweigh the above evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). Moreover, to the extent that one of the lay statements indicates that the service member had worked in a sleep clinic, the VA physician considered this opinion and nonetheless found as set forth above. To the extent that this lay statement had probative value, it was outweighed by the physician's expert opinion. The above discussion reflects that the clear and unmistakable evidence establishes that there was no increase in severity of sleep apnea during the Veteran's periods of active service from March 2006 through May 2006, from September 2007 to September 2008, from July 5, 2009, through July 26, 2009, and from February 2010 to January 2011. Here, the presumption of soundness is rebutted. B. Service from July 1973 to July 1975, from January 2003 through January 2005 The Veteran does not contend, nor does the record contain any information to indicate, that he had sleep apnea during his initial two periods of service. To the contrary, the Veteran testified before the undersigned that he did not have sleep apnea symptoms until September 2007 or into 2008. See hearing transcript page 3. He reported that he had slept well before then. Id, p. 3. Consistent with this assertion, all of the lay statements reflect that perceived symptoms of sleep apnea, snoring and appearing to stop breathing for periods during sleep, were not shown until after these two periods of service. Moreover, none of the medical opinion evidence dates or relates the Veteran's sleep apnea to January 2005 or earlier service. Indeed, there are no findings noted that are consistent with sleep apnea until June 2005. Therefore, the Board finds that the Veteran's sleep apnea did not have its onset during the Veteran's periods of service from July 1973 to July 1975, or from January 2003 through January 2005. The Board notes that there is no probative and credible evidence supporting the theory that the Veteran's current sleep apnea is due to any event or incident in active service from July 1973 to July 1975, or from January 2003 through January 2005, to include even his own statements. The Board finds that the probative evidence of the record (e.g., service treatment records, VA treatment records and VA opinion evidence) indicate that the Veteran does not have sleep apnea that manifested in his periods of active service from July 1973 to July 1975, or from January 2003 through January 2005. Conclusion In sum, the evidence deemed most probative by the Board establishes that service connection for sleep apnea is not warranted. The evidence establishes that such disability was not manifest during his periods of active service from July 1973 to July 1975, from January 2003 through January 2005. In addition, sleep apnea pre-existed the subsequent periods of service and was not aggravated during the following periods of active service. In making this determination, the Board considered the preponderance of the evidence standard for the earlier two periods of service. For the latter periods of service, the standard was of clear and unmistakable evidence in regard to the presumption of soundness. ORDER Service connection for sleep apnea is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs