Citation Nr: 1704552	
Decision Date: 02/15/17    Archive Date: 02/24/17

DOCKET NO.  09-47 581	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel






INTRODUCTION

The Veteran served on active duty from October 1981 to February 2003.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of this matter is now with the RO in Milwaukee, Wisconsin.

This matter was previously remanded by the Board in July 2013, and the Board requested a medical specialist's opinion from the Veterans Health Administration (VHA) in April 2016. As will be discussed further below, the Board finds that there has been substantial compliance with its Remand directives and request for a VHA medical specialist's opinion, and the matter is now properly before the Board. See Stegall v. West, 11 Vet. App. 268 (1998).

The record before the Board consists of the Veteran's electronic record known as Virtual VA/VBMS.


FINDING OF FACT

The Veteran's currently diagnosed sleep apnea is not related to his military service and is not due to or aggravated by his service-connected asthma disability.


CONCLUSION OF LAW

Entitlement to service connection for sleep apnea disability, to include as secondary to a service-connected asthma disability, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 claim. 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) (2016).

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 his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in August 2008, prior to the initial unfavorable adjudication. 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 ratings and effective dates are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

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). VA treatment records, lay statements, military personnel records, and service treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records.  In August 2016, the Veteran and his representative were provided with a copy of the VHA opinions and an opportunity within which to submit additional evidence and/or argument in support of the appeal.

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). The Veteran was afforded VA examinations in September 2009 and August 2013, and in June 2016 a VHA medical specialist's opinion was provided. Taken together, the Board finds the medical examinations and opinions to be adequate. The VA examiners noted a review of the Veteran's claims file, the September 2009 and August 2013 examiners performed a physical examination of the Veteran, and each examiner noted the Veteran's assertions and medical history. Although in an October 2016 Appellant's Brief the Veteran argues that the June 2016 medical opinion provided is inadequate in that it fails to address relevant factors, such as the Veteran's service-connected headaches and photophobia, the Board disagrees. The VHA medical specialist noted a review of the entire claims file, to include the Veteran's service treatment records, and provided a detailed opinion supported by relevant facts and medical knowledge. The Board finds that the June 2016 VA examiner, a licensed medical specialist, conducted a thorough review, and that a well-reasoned and well supported opinion was provided.

Thus, since VA has obtained all relevant identified records and a medical opinion was obtained, its duty to assist in this case is satisfied.

II. Stegall Compliance

This matter was remanded by the Board in July 2013, and the Board requested a VHA medical specialist's opinion in April 2016. 

In July 2013, the Board remanded the matter for additional development and adjudication. Specifically, the July 2013 Board Remand directed the RO to afford the Veteran the opportunity to identify or submit any additional pertinent evidence in support of his claim, and to obtain any outstanding and identified records. Accordingly, in July 2013, a letter was issued to the Veteran notifying him of what information was still needed for his claim. In response, the Veteran did not notify the VA of any additional relevant records. As such, VA has satisfied its duty to assist with the procurement of relevant records and is in substantial compliance of this Remand directive.

The July 2013 Board Remand also directed the RO to afford the Veteran an addendum opinion as to whether it is at least as likely as not that the diagnosed sleep apnea is due to or aggravated by the service connected asthma. Accordingly, an addendum opinion was furnished in August 2013. The examiner offered an opinion as to whether the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness, and whether the Veteran's claimed condition is at least as likely as not proximately due to or the result of the Veteran's service-connected condition.

Also in accordance with the July 2013 Remand, the Veteran was furnished an SSOC in October 2013.

However, after a review of the August 2013 addendum opinion, the Board referred this case for a medical expert opinion as forth in the VHA Directive 1602 dated February 19, 2016. The Board requested that a somnologist provide an advisory medical opinion concerning whether it is at least as likely as not that the Veteran's sleep apnea is related to the Veteran's military service and whether it is at least as likely as not that the Veteran's sleep apnea is due to or aggravated by the service-connected asthma. The examiner was also directed to discuss the September 2009 and August 2013 examination opinions and resolve all inconsistencies.

Accordingly, an advisory medical opinion was furnished in June 2016. The examiner provided a detailed summary of the Veteran's claims file, to include his military and medical history. The examiner noted a review of the September 2009 and August 2013 examination opinions, provided medical opinions in direct response to those requested by the Board, and provided thorough rationales supported by medical knowledge and literature. The Board sought clarification of the examiner's concluded opinions, and in response, the examiner provided clarification in a July 2016 addendum.

The Board finds that there has been substantial compliance with its prior Remand directives and its VHA Directive request for a specialist's opinions, and matter is now properly before the Board for adjudication. See Stegall, 11 Vet. App. at 271.

III. Service Connection

In general, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). In order to establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in active service. See 38 C.F.R. § 3.303(d) (2016); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

A disability can be service-connected on a secondary basis if proximately due to, or the result of, a service-connected condition. See 38 C.F.R. § 3.310(a) (2016). 
In order to establish entitlement to service connection on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable. 38 C.F.R. § 3.310(a) (2016); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Aggravation means that the disability permanently worsened beyond its natural progression.

For certain chronic disorders shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2016). 

When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is an alternative means of establishing presumed service connection with respect to one of the listed chronic diseases. Competent medical evidence is required, unless non-expert evidence is competent to identify the existence of the condition. See 38 C.F.R. § 3.303(b) (2016). However, the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). Because sleep apnea is not considered a "chronic" disorder under 38 C.F.R. §§ 3.307, 3.309, to the extent that the Veteran has argued that his sleep apnea had been symptomatic since his military service, service connection is not warranted under 38 C.F.R. § 3.303(b) for a chronic disability.

The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran contends that he has a current diagnosis of sleep apnea as a result of his service, to include as secondary to his service-connected asthma. The Veteran asserts that as part of his treatment at the VA pulmonary clinic, he participates in several sleep studies, and through these studies he has been diagnosed with obstructive sleep apnea (OSA). The Veteran further notes that he is currently being treated for his sleep apnea with a continuous positive airway pressure machine (CPAP). He continues to experience daytime fatigue and is monitored by the VA's sleep study clinic to enhance his asthma treatment and reduce the symptoms associated with his sleep apnea. The Veteran asserts that his sleep apnea is aggravated by his service-connected asthma. Specifically, in a November 2009 letter, the Veteran states that although he uses his CPAP to assist him with his sleep apnea, he wakes up gasping for air and in need of his emergency inhaler three to four times a night.

At the outset, the Board finds that the first prong of service-connection on a direct and secondary basis, a current disability, is satisfied here. The Veteran has a current diagnosis of moderate OSA. A September 2009 VA examination report indicates a diagnosis of OSA. Moreover, VA treatment records from June 2007 to June 2009, and from October 2009 to February 2010, are included in the claims file. Such records include a diagnosis of moderate OSA in April 2007, after a March 2007 sleep study. The records also indicate that the Veteran is being treated with a CPAP, but that his symptoms have not improved. His symptoms include daytime sleepiness, to include drowsy driving several times a week, with the Veteran unable to get more than 4 hours of sleep when using the mask, and a history of snoring and choking sensations at night. 

As for the second prong of service-connection on a direct basis, an in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records do not include a diagnosis of OSA, and do not include notations of difficulty sleeping, snoring, excessive daytime sleepiness, witnessed apneas, or any facial or upper airway injuries. However, the Veteran's service treatment records do include notations for headaches, of which the Veteran is currently service connected for along with photophobia, which the Veteran asserts is associated with his sleep apnea and its associated fatigue. The Veteran asserts that his symptoms of sleep apnea began in service. The Veteran is competent to report his symptoms, as his symptoms are capable of lay observation.  Therefore, as to reported symptoms in service, the second criteria with regard to a claimed inservice event is met. See Layno v. Brown, 6 Vet. App. 465, 470 (1994).

The final issue concerning entitlement to service connection on a direct basis is whether the Veteran's sleep apnea is otherwise related to active service. The Veteran was first provided a VA examination to assess his sleep apnea in September 2009. The examiner opined that, "[i]t is less likely as not that the Veteran's current disability of OSA had its onset during active military service, as manifested by symptoms for which he received treatment with flovent and albuterol." 

An additional VA opinion was provided in August 2013. The examiner noted an in-person examination of the Veteran, and the VA examiner reviewed the Veteran's entire claims file. The VA examiner opined, "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained that although a VA examination in 2002 notes a diagnosis of asthma, triggered by solvent, dust, and cigarettes, with treatment with albuterol and flovent, the Veteran "was suspected to have OSA at a later stage when he [had] problems with daytime sleepiness, snoring and waking up suddenly gasping for air[,]" with the diagnosis of OSA established in April 2007. The Board notes that the August 2013 VA examiner also marked that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." However, the Board does not find the opinion as to sleep apnea existing prior to service to be probative. The record does not indicate through lay or medical evidence that the Veteran's sleep apnea pre-existed service. The Veteran does not contend that his sleep apnea pre-existed service, and there is no supporting medical evidence, with the first diagnosis of sleep apnea was several years following service. Moreover, the August 2013 did not provide a rationale for such opinion. Therefore, the Board does not find such opinion as to a pre-existing condition to be probative, and does not find that further analysis and discussion is necessary.

Last, of record is a June 2016 VHA advisory expert medical opinion. The examiner's VHA opinion includes a thorough summary and analysis of the Veteran's claims file, to include his service treatment records, medical treatment records, medical examinations, and assertions. The examiner concluded that it is less than likely as not that the Veteran's sleep apnea is related to the Veteran's military service, explicitly stating that "military service did not cause OSA in this Veteran (0 percent chance in this Veteran)." The examiner included a detailed rationale that is supported by medical literature and knowledge.

First, the VHA opinion states that "there is strong evidence that OSA is predominantly due to obesity . . . ." The examiner goes on to explain that in this case, the Veteran gained almost 50 pounds after he was discharged from the military, and states that "this is most likely the cause of him developing OSA." 

Second, the VHA opinion notes that "OSA most likely requires a genetic predisposition, including genes that control craniofacial bony structure[,] [ . . . ] genes that control fat deposition into the tongue[,] [ . . . ] and genes that control ventilator stability . . . ." Therefore, the examiner finds that the military did not alter the Veteran's genetics and any predispositions.

Last, the VHA opinion notes that there can be "extraordinary causes of OSA that could be related to military service-this would include severe facial or upper airway bone or soft tissue injury that occurred because of military service, e.g., blast injury, accident, etc. that occurred during time in military." However, the examiner explained that although this is could be one way sleep apnea is related to military service, he "did not find any reference to this Veteran suffering from major facial or upper airway injuries during his time in the military that could cause him to have OSA."

Given the medical evidence of record, the Board finds that the most probative evidence of record demonstrates that the Veteran's sleep apnea is not related to active service. The VA medical opinions of record together are probative as to the Veteran's claims of service-connection for sleep apnea on a direct basis, as the examiners have reviewed the claims file, considered the Veteran's medical history, and provided sufficient rationale for the opinions provided. Accordingly, the opinions of record are of probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Although the Veteran is competent to report his in-service complaints of symptoms that he attributes to sleep apnea, such as headaches and sleep issues, the Board finds that he is not competent to provide an opinion regarding the etiology of his current sleep apnea. See Layno, 6 Vet. App. at 470. Therefore, the Veteran's lay statements carry little probative weight and are outweighed by the medical opinions of record. 

As previously noted above, in the October 2016 Appellant's Brief the Veteran argues that the June 2016 medical opinion provided is inadequate in that it fails to address relevant factors, such as the Veteran's service-connected headaches and photophobia. However, again the Board notes that the specialist noted a review of the entire claims file, to include the Veteran's service treatment records, and provided a detailed opinion supported by relevant facts and medical knowledge. As noted above, the Veteran is not shown to have the requisite medical expertise or knowledge to make a claim as to relevant factors and symptoms of sleep apnea, and has provided no competent evidence to support his contentions. Instead, the Board finds that the June 2016 VA examiner, a medical specialist, conducted a thorough review, and that a well-reasoned and well supported opinion was provided. Thus, the Board provides more weight to the VA opinions of record and finds that the third criteria to establish service connection on a direct basis is not met.

As for service connection on a secondary basis, the first prong (a current disability) was previously addressed above and is satisfied. Additionally, the Board finds that the second prong, a service-connected disability, is satisfied in this case. The Veteran is currently service connected for asthma at 30 percent disabling, effective March 1, 2003.

Therefore, this matter turns on the third prong, whether there is a nexus between the service-connected disability and the current disability. See Wallin, 11 Vet. App. at 512. The Veteran contends that his current sleep apnea is secondary to his service-connected asthma. The Veteran asserts that his sleep apnea is aggravated by his service-connected asthma, and states that although he uses his CPAP to assist him with his sleep apnea, he wakes up gasping for air and in need of his emergency inhaler three to four times a night. See November 2009 Correspondence. 

A January 2009 VA treatment record reports that the CPAP has been inadequate and notes asthmatic symptoms, to include wheezing daily and treatment by using formetrol, mometasone, albuterol nebulizers every 6 hours.

The Veteran was afforded a VA examination in September 2009 to assess his sleep apnea. The VA examiner found that the Veteran is "less likely as not to have asthma as the cause of his obstructive sleep apnea." However, the examiner stated that the service-connected asthma "may at least as likely as not cause an acute aggravation of his obstructive sleep apnea but not permanently." Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable, but that aggravation means that the disability permanently worsened beyond its natural progression, which the examiner did not find in this case.

However, an additional VA opinion was provided in August 2013. The August 2013 examiner further opined that the "claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition." The rationale provided states, "[a]sthma is not a known cause of OSA." 

Last, of record is a June 2016 VHA advisory expert medical opinion. Again, the Board notes that the examiner's VHA opinion includes a thorough summary and analysis of the Veteran's claims file, to include his service treatment records, medical treatment records, medical examinations, and assertions. 

In the June 2016 VHA opinion, the examiner concludes that "asthma is at least as likely as not to cause OSA." However, upon review, the Board found the rationale provided in the VHA opinion to be internally inconsistent with the stated opinion, which seemed to provide support for an opinion against secondary service connection, and the Board sought clarification of the Veteran's phrased opinion. Therefore, in a July 2016 addendum, the examiner clarified as to the question of whether "the Veteran's service-connected asthma caused the [Veteran's] sleep apnea-the answer is no." Additionally, in the July 2016 addendum opinion, the examiner clarified that as to the question of whether "the Veteran's service-connected asthma aggravated the patient's sleep apnea-the answer is greater than 50 percent not likely, but that data/research is still not yet definitive on this matter."

In the June 2016 VHA opinion, the examiner explains that asthma is a disease of the small lower airways, while OSA is a collapse of the upper airway (nasopharynx and/or oropharynx). The examiner continues by noting the following: 
"[a]new study in 2015 [. . . ] concluded that asthma was associated with an increased risk of new-onset OSA. However, studies investigating the mechanisms underlying this association have yet to be elicited. Once mechanisms are understood, then whether all asthmatics or only specific subpopulation of asthmatics are at increased risk of OSA will be better elicited. Therefore, although a link has been established between asthma and OSA, it does not mean that this specific Veteran's OSA is linked to asthma." 
Thus, the Board finds that although the VHA opinion discusses the possible connection between sleep apnea and asthma, the examiner concludes that such connection has not been determined, and that such connection does not necessarily apply to this case. 

Although that the VHA opinion notes that uncontrolled asthma may cause the Veteran to obtain less sleep, noting his reports of using his inhaler four times during sleep, the examiner also notes several other factors that may contribute to his sleep apnea. First, the examiner notes the Veteran's body mass index (BMI) and suggests that the Veteran lose weight because "it is not uncommon that OSA completely resolves with weight loss and no longer requires treatment." Second, the examiner notes that the Veteran's complaints of only obtaining 4 hours of sleep are likely because "he works nights (shift work), [so] he has difficulty sleeping during the day . . . ." Third, difficulty with the CPAP mask "leading to poor tolerance and fragmented sleep then pulling off the mask leading to noncompliance of CPAP and overall poor quality of sleep." Moreover, the examiner explained that "a study demonstrates that CPAP use improves asthma quality of life," and concluded that Veteran is noncompliant with CPAP for his OSA treatment. Therefore, the examiner notes that there could be various causes of excessive daytime sleepiness, "including insomnia from shift work (short sleep and fragmented sleep), medications, and morbidities other diagnosed or undiagnosed chronic diseases."

The Board finds that the competent medical evidence is against a finding that the Veteran's sleep apnea is the result of or is aggravated by the Veteran's service-connected asthma. Although the September 2009 examiner opined that the Veteran's asthma may at least as likely as not cause an acute aggravation of his obstructive sleep apnea, he did not find that such aggravation was permanent, and the clarifying medical opinions of record do not find that the Veteran's sleep apnea permanently worsened beyond its natural progression as a result of the Veteran's service-connected asthma. Instead, the June 2016 VHA medical opinion indicates several factors that may contribute to the Veteran's sleep apnea, and the July 2016 clarifying opinion concluded that it is greater than 50 percent (more likely than not) that the Veteran's sleep apnea was not aggravated by the Veteran's service-connected asthma. 

While the Veteran contends that his service-connected asthma has caused his sleep apnea, the Board again notes that the medical evidence of record does not reflect such contentions. Although the Veteran may feel that his sleep apnea symptoms are due to his asthma condition, there is no objective evidence to relate the two conditions. Again, the Board finds that that his lay opinion is entitled to little probative value. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of his sleep apnea. See Kahana, 24 Vet. App. at 438. Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.

Thus, based on the forgoing reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for the Veteran's sleep apnea on a direct and secondary basis, and the benefit of the doubt doctrine does not apply. 



ORDER

Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs