Citation Nr: 1642841 Decision Date: 11/08/16 Archive Date: 12/01/16 DOCKET NO. 11-03 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Army from January 1982 to August 1993, from October 2001 to November 2003, and from December 2003 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, Virginia. Jurisdiction over the case was subsequently transferred to the RO in Atlanta, Georgia. This case was previously before the Board in May 2014, when it was remanded for further development. FINDING OF FACT Obstructive sleep apnea was not present during the Veteran's period of active duty or for several years thereafter; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed obstructive sleep apnea is related to her active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§1101, 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a Veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist Veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and 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) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Veteran was provided notice letters in September 2007 and June 2008 informing her of both her and VA's obligations. Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. The Veteran has also been provided with multiple VA examinations. Upon review of this examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded her current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The RO associated with the claims file the Veteran's service treatment records, service personnel records, private treatment records, and VA treatment records. The Veteran has not identified any relevant records aside from those that are already in evidence. As such, Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Sleep Apnea Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board notes that the Veteran is not entitled to presumptive service connection for her obstructive sleep apnea, as it is not considered a chronic disease for purposes of 38 C.F.R. § 3.303(b). See C.F.R. § 3.309(a) (2015). 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. 38 C.F.R. § 3.303(d) (2015). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's STRs show that she complained of sleep disturbance in July 2003. In September 2003, the Veteran indicated that she has been experiencing sleep issues, snoring, and non-restorative sleep, fatigue for about two years. The Veteran underwent a sleep study in October 2003, which found that she had upper airway resistance without evidence to suggest significant obstructive sleep apnea, and that the Veteran did not meet the diagnostic criteria for sleep apnea. From September 2003 to December 2003, she was checked for sleep apnea, an organic sleep disorder (narcolepsy or restless leg syndrome), and allergic rhinitis. The STRs are otherwise negative for any treatment for, or diagnosis of, any sleep problems. On her April 2009 separation examination, the Veteran was diagnosed with sleep disturbance, with no diagnosis of a specific disorder. Thus, there is evidence of in service incurrence of sleep issues. The Veteran's private medical records show that she complained of snoring, unrefreshed sleep, daytime sleepiness, and tiredness and her doctor noted that had mild congestion and turbinates that were pale and swollen. The Veteran underwent a sleep study in July 2013. The private doctor diagnosed the Veteran with sleep apnea, and recommended that a CPAP titration study be conducted. Thus, she has a current diagnosis. Notably, there was no comment on the etiology of the sleep disorder. Thus, the only question let is whether there is a nexus between the Veteran's current disability and her sleep issues in service. A VA Examination was conducted in July 2014 to assess the etiology of the Veteran's sleep apnea. The examiner opined that the Veteran's sleep apnea was less likely as not due to her active service, as the Veteran was only diagnosed with sleep apnea in 2013, several years after separation from active service. Significantly, the examiner noted that the Veteran had a significant risk factor for obstructive sleep apnea, as she has gained 34 pounds and had a BMI consistent with obesity, obesity being the most important risk factor for obstructive sleep apnea. The examiner also opined that there was no evidence of a current nasal or respiratory disorder, although the Veteran did complain of allergies in the past. The examiner also related that there was no direct causal link between allergic rhinitis and obstructive sleep apnea, and that X-rays showed no evidence of a nasal obstruction or septal deviation. The examiner also related that the Veteran's sleep issues in active service were likely linked to her history of depression, as depression "can produce insomnia which is distinctively different than sleep apnea or organic sleep disorder." (To this end, the Veteran told the examiner that she took over the counter melatonin for insomnia. The Board also notes that the Veteran is already service-connected for depression.) The Veteran has reported that she snored, and was told by her husband and children that she snored, and that she was always tired during the day. After a review of the record, the Board concludes that entitlement to service connection for obstructive sleep apnea is not warranted. While the Veteran is currently diagnosed with the condition, the competent and probative evidence of record does not demonstrate a nexus between the obstructive sleep apnea and her active service. The Veteran's STRs are absent of a diagnosis of obstructive sleep apnea during active service, and the sleep issues of which she complained during active service were specifically noted not to be sleep apnea after the Veteran underwent a sleep study. Further, as indicated, the record includes a July 2014 VA examination which was conducted to address the etiology question at issue. The physician found no relationship between the Veteran's in-service sleep problems and the post-service diagnosis of obstructive sleep apnea. In addition to the documented post-service treatment records, the evidence includes the Veteran's statements asserting the continuation of symptoms. To the extent that the Veteran reported having sleeping problems, specifically problems with snoring and waking up fatigued, she is competent to provide such a history. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, she is credible in her reports of her sleep problems symptoms and their effect on her activities. However, although the Veteran is competent to report sleeping problems, she is not competent to provide a medical diagnosis or nexus. The Board notes that there is no evidence that the Veteran possesses the requisite medical training or expertise necessary to render her competent to offer a diagnosis of sleep apnea or to answer causal questions of whether her claimed disability can be attributed to her in-service experiences. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board emphasizes that there is a persuasive VA medical opinion that weighs against the Veteran's claim. The Veteran's assertions opining that her current obstructive sleep apnea is related to her active duty service are outweighed by the medical evidence to the contrary. The Board finds the July 2014 VA examination to be the only competent and probative evidence of record, and therefore accords it greater weight than the Veteran's subjective complaints of symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds that the July 2914 VA examiner detailed the Veteran's symptoms and history of sleep issues. The examiner explicitly considered the Veteran's assertion that her current sleep apnea was related to the sleep problems/snoring she experienced in active service. The examiner reviewed the Veteran's claims file, and reported the Veteran's symptoms thoroughly. The Veteran has not provided any private medical opinion which addresses any relationship between her self-reported in-service sleep apnea/snoring symptoms and her current obstructive sleep apnea. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In summary, as the preponderance of the evidence is against the claim, service connection for obstructive sleep apnea is not warranted. ORDER Entitlement to service connection for chronic obstructive sleep apnea is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs