Citation Nr: 1716840 Decision Date: 05/17/17 Archive Date: 05/22/17 DOCKET NO. 13-06 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1970. These matters come before the Board of Veterans' Appeals (Board) from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2013, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the proceeding is associated with the claims file. In March 2015 and March 2016 the Board remanded the appeal for additional development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT The Veteran's sleep apnea did not have its onset in service, is not otherwise related to service, and is not shown to have been caused or aggravated by his service-connected dysthymic disorder and/or coronary artery disease. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Here, VCAA notice was provided by correspondence in June 2016. The claim was last adjudicated in August 2016. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records and post-service treatment records and VA examination and opinion reports. The Board also notes that actions requested in the prior remands have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2016). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that he developed sleep apnea secondary to his service-connected dysthymic disorder and/or coronary artery disease (CAD). The evidence of record shows that the Veteran has been diagnosed with and treated for obstructive sleep apnea. Accordingly, the first element of service connection, a current disability, is met. The evidence does not show, nor does the Veteran claim, that his sleep apnea had its onset in service. The service treatment records contain no complaints, history, diagnosis or findings consistent with sleep apnea and on separation from service in September 1970, the Veteran denied a history of frequent trouble sleeping. After service, treatment records show that the Veteran underwent a polysomnogram in 2011 and was diagnosed with obstructive sleep apnea and was issued a C-PAP machine. Accordingly, service connection on a direct basis is not established. As noted, the Veteran's claim is that his sleep apnea is secondary to his service-connected CAD or psychiatric disorder. Thus, the determinative question in this case is whether his sleep apnea is caused or aggravated by a service-connected disability. On this point, there is evidence for and against the claim. The evidence in favor of the claim consists of the medical opinion of the Veteran's private treating clinician who in a June 2011 statement opined that the Veteran's sleep apnea was as likely as not related to military service when combined with posttraumatic stress disorder. Also favoring the claim is the opinion a private nurse practitioner who in July 2013 noted that the Veteran was being treated for obstructive sleep apnea and stated that the Veteran's obstructive sleep apnea was as least as likely as not due to or aggravated by his service connected heart problem or dysthymic disorder. The private opinion reports did not provide a rationale or discussion to illustrate how the opinions were reached or what clinical data would support either opinion. Accordingly, the private medical opinions are assigned little, if any, probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weight against contrary opinions."). The evidence against the claim consists of the VA examination and addendum opinion reports in June 2015 and June 2016. On VA examination in June 2015 the Veteran reported a history of snoring and witnessed-stop breathing, having onset five or six years earlier. Subsequently, the Veteran underwent a polysomnogram in 2011 that revealed mild obstructive sleep apnea and he was given a C-PAP machine. The examiner determined that the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness because the service treatment records did not show complaints of, treatment for, or a diagnosis of, sleep apnea during service and on separation from service the Veteran denied a history of frequent trouble sleeping. The examiner also reported that the condition claimed was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner based the opinion on a review of the current standard medical literature which failed to list dysthymic disorder and/or coronary disease as etiology factors for sleep apnea. While the examiner noted that there was no evidence of aggravation from the Veteran's dysthymic disorder and/or his coronary disease, the examiner did not adequately discuss the issue of aggravation. Accordingly, an addendum to the opinion was obtained. In an opinion report in June 2016 the examiner opined that the Veteran's currently diagnosed sleep apnea was less likely than not aggravated beyond its natural disease process by either dysthymic/depressive disorder or coronary artery disease. In support of the opinion the examiner explained that Veteran's coronary artery disease was stable. He was last seen by his cardiologist a year earlier in March 2015, at which time his METS were >7-10. Additionally, the Veteran was not under treatment with medication for the service-connected dysthymic disorder, nor were there any visits to a mental health care professional. The examiner explained that the Veteran's coronary artery disease and dysthymic/depressive disorder and sleep apnea were all different conditions caused by different physiological processes. For example, coronary artery disease was caused by atherosclerosis. Dysthymic/depressive disorder was a caused by a syndrome, which was a constellation of symptoms and signs that may include depressed mood. In contrast, obstructive sleep apnea was most commonly determined to be a sleep-related breathing disorder. The Board finds the opinion of the VA examiner to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran's sleep apnea was incurred in service or was caused or aggravated by the service-connected CAD and/or psychiatric disorder. The findings of the VA examiner were based on a review of the evidence, which did not substantiate a finding that the Veteran sleep apnea had onset in service or was caused or aggravated by a service-connected disorder. The examiner considered the complete record and the Veteran's contentions, and provided an explanation that cited to the medical literature as to why the evidence does not support a finding that the Veteran's sleep apnea is related to service or the service-connected CAD and/or psychiatric disorder. The Board finds this opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, sleep apnea falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report symptoms of snoring, any actual diagnosis of sleep apnea requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). To the extent that the Veteran believes that his sleep apnea is caused or aggravated by a service-connected disability, as a lay person, he is not shown to possess any specialized training in the medical field. Specifically, the question of causation and aggravation of sleep apnea involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. The Veteran's opinion as to the etiology of his current sleep apnea is not competent evidence, as the nexus question involved in this case requires medical expertise to determine. Id. In summary, the Board finds that the Veteran's sleep apnea did not have its onset in service, is not otherwise related to service, and is not shown to have been caused or aggravated by his service-connected dysthymic disorder and/or CAD. Accordingly, service connection for obstructive sleep apnea is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service for sleep apnea, to include as secondary to a service-connected disability, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs