Citation Nr: 1800416 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-44 116 ) 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 as secondary to service-connected tinnitus. ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The Veteran served on active duty in the United States Marine Corps from September 1959 through September 1963. This issue comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran submitted a notice of disagreement (NOD) in May 2016, challenging the denial of service-connection for sleep apnea. A statement of the case (SOC) was issued in August 2016, and the Veteran perfected his appeal with the timely filing of a VA Form 9 (substantive appeal) in September 2016. This matter was last before the Board in March 2017 where it was remanded for additional development. The Board finds that there has been substantial compliance with the directives of the latest remand decision. See Stegall v. West, 11 Vet. App. 268 (1998). The record was supplemented with a VA addendum opinions in May and September 2017, and the VA has obtained updated VAMC treatment records. Review of the record shows that the Veteran has not raised any argument with regard to the recent VA opinions, and thus, no further action is necessary and this matter is ripe for adjudication. FINDING OF FACT The Veteran's current sleep apnea disorder was not present during service or for many years thereafter, and is not shown to be causally or etiologically related to any injury, illness, or incident during service, or secondary to a service-connected disability, including tinnitus. CONCLUSION OF LAW Service connection for sleep apnea, to include as secondary to tinnitus, is not established. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied as the Veteran was provided all of the relevant notice requirements in his December 2015 VA 21-526 EZ Fully Developed Claim forms (EZ Claim). VA also has a duty to assist the Veteran in the development of the claim. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained service treatment records, post-service VAMC and private treatment records. Furthermore, the Veteran has been afforded multiple VA examinations in order to determine the etiology of his sleep apnea disorder, most recently in September 2017. As discussed in detail in the Board's March 2017 remand, the February 2016 VA examination report is inadequate to the extent that in the examiner failed to proffer an opinion regarding any aggravating effect of the Veteran's service-connected tinnitus upon the claimed sleep apnea disorder. However, other than this noted deficiency, the Board finds that the February 2016 VA examination is adequate to that limited extent. Regardless, the Board finds that the recent September 2017 VA medical opinion has cured the above noted deficiency and is adequate to evaluate whether the Veteran is entitled to service connection for sleep apnea, to include as on a secondary basis. Specifically, the September 2017 VA examination is adequate as it includes an extensive review of the record with a timeline of the Veteran's post-service medical history citing to examples in support of the rationale, to include scholarly journals. Moreover, the Veteran has not alleged any inadequacy with this most recent VA opinion. Therefore, the Board finds that the examinations of record, absent the aforementioned deficiency in the February 2016 VA examination, are adequate to adjudicate the Veteran's claim for service connection in accord with the tenets of Barr v. Nicholson, 21 Vet. App. 303 (2007) and Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board thus finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims. VA's duty to assist the Veteran has been satisfied. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the nexus between a sleep disorder and hypertension to a service connected disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to address the question of whether the Veteran's service-connected disabilities caused or aggravated his sleep apnea. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Sleep Disorder The Veteran is seeking entitlement to service connection for sleep apnea, he contends that his current illness is due to his service-connected tinnitus. See September 2016 VA Form 9. Facts The Veteran's service records were reviewed. His enlistment examination from September 1959 did not indicate any pertinent abnormalities. See September 1959 Report of Medical Examination. The Veteran was seen for various medical issues while in service, including a stomachache with dizziness in November 1959, but there were no documented symptoms, treatment, or diagnoses of any sleep-related issues. The Veteran's discharge physical from August 1963 reflects no pertinent medical issues regarding his sleeping or breathing. See August 1963 Report of Medical Examination. The claims file contains a thorough record of the Veteran's post-service medical history, with documentation of VAMC treatment stemming from the late-1970s through to the present day. Prior to 2015, any complaints relating to sleep that are reflected in the record are noted only conjunction with treatment of psychiatric issues, with no independent sleep-related diagnoses identified. See i.e. November 1987 VAMC Mental Health Consult ("Requests to see psychiatrist...feels lazy...not able to sleep"); June 2015 VAMC Psychology Consult ("in the past 6 to 8 months, he has had increasing numbers of dreams, and has had difficulty getting restful sleep"). In October 2015, the Veteran underwent a sleep study which resulted in a diagnosis of mild obstructive sleep apnea. The report identified co-morbid conditions including "HTN, strokes, CAD, Afib, or DM," without any mention of tinnitus or any ear related disorders, and recommends therapies including weight loss, oral appliances, and surgery. At an October 2015 VA audiological examination, the Veteran reported that his tinnitus "bothers him in quiet and causes him difficulty sleeping." See October 2015 VA examination. The Veteran was afforded a VA examination for his sleep apnea in February 2016. See February 2016 VA examination. The examiner indicated mild obstructive sleep apnea, which was documented in a sleep study performed in October 2015. The Veteran reported that "his history of tinnitus is the causative factor" of his sleep apnea, as the incessant buzzing in his ears "pulsates and thumps and keeps me from sleeping at night." The examiner noted that the Veteran was prescribed a CPAP machine and medication. The examiner opined that the Veteran's sleep apnea is less likely as not due to the Veteran's tinnitus, noting that sleep apnea has a "clear and concise pathology none of which pertains to tinnitus," as reflected in medical literature cited to in the report. Id. ("Tinnitus: Characteristics, Causes, Mechanisms, and Treatments [and] Pathophysiology of Adult Obstructive Sleep Apnea.") The examiner further concluded that the Veteran's sleep apnea was less likely than not related to his service, noting that there is no nexus to his 1959 complaint of "episodic dizziness" to any ear illness or sleep apnea. As discussed above, the record was supplemented additional VA medical opinions regarding the issue of a secondary relationship between sleep apnea and tinnitus, to specifically include whether the service connected disability aggravated the claimed condition. This query was first addressed in May 2017 where the examiner corroborated the earlier opinion and concluded that the Veteran's sleep apnea was not caused by or due to the service-connected tinnitus. For the rationale, the examiner opined that "sleep apnea has clear and concise pathology none of which pertain to tinnitus," citing to scholarly articles in support. As this addendum opinion did not provide an opinion regarding aggravation, the record was supplemented in September 2017with an additional VA opinion that addressed this issue. Following "a comprehensive review of the VBMS e folder, medical evidence from the clinical file, lay statements, CAPRI and current medical literature," the examiner opined that the sleep apnea was "less likely than not" aggravated by the Veteran's tinnitus. In rendering this conclusion, the September 2017 VA examiner discussed in detail the separate and independent "pathophysiology, etiology and nature" of the two conditions, citing to multiple medical treatises in support, and highlighting that the conclusion was determined in light of the Veteran's "credible" lay statements with regard to "observable symptomatology and reports of injuries." Analysis Given the evidence of record, the Board finds that service connection for a sleep disorder is not warranted on either a direct or secondary basis. Initially, the record does not show, nor does the Veteran contend that his sleep disorders began in service. Rather, as per the October 2015 VAMC treatment record, the Veteran's sleep disorder began around 2015, approximately 40 years after military service. Furthermore, sleep apnea is not a presumptive disorder pursuant to 38 C.F.R. § 3.309. As such, service connection for sleep apnea on a direct or presumptive basis is not warranted. With regard to the Veteran's claim that his sleep apnea is secondary to his service-connected tinnitus, the February 2016 VA examiner specifically opined that the Veteran's sleep apnea was not directly or proximately caused by his tinnitus or any ear illness. As noted above, VA examiner opined that medical literature identifies sleep apnea and tinnitus as two distinct medical entities without overlap. The February 2016 VA examiner also noted that there is no nexus to any service-related event for the cause of the Veteran's sleep apnea, identifying that a single bout of dizziness in 1959 was episodic in nature and part of a gastro-intestinal complaint. Moreover, the October 2015 sleep study specifically identified co-morbid conditions without any mention of tinnitus or any ear-related issue, and recommendations for therapy, including weight loss, which appears to be a current condition of the Veteran. Similarly, regarding whether the sleep apnea was aggravated by his tinnitus, the September 2017 VA examiner provided an in-depth analysis of the conditions in light of the Veteran's medical record and his lay statements, and found no symbiotic parallels between the problems. As the VA examiners offered clear conclusions with supporting data as well as reasoned medical explanations, the Board accords great probative weight to the opinions. See Nieves-Rodriguez, supra. Although the Veteran contends that his sleep disorder is secondary to his tinnitus, the Board accords his statements regarding the etiology of these disorders little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of sleep apnea involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. The Board notes that the Veteran submitted several medical articles to support his theory. Although these articles were informative, as they discussed generally the types of symptoms various patients might experience with these illnesses, none of the articles discussed this Veteran's specific symptoms and resulting diagnoses, and accordingly are of limited probative value. See, e.g., Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Wallin v. West, 11 Vet. App. 509, 513 (1998). In a case such as this, where the sleep disorder has multiple potential etiologies, expert testimony is necessary to establish causation. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is non-probative evidence. See Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, based on the foregoing, the Board finds that the most probative evidence shows that service connection for sleep apnea is not warranted on a direct or secondary basis. In reaching this 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. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs