Citation Nr: 1800453	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  13-19 467	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to an initial rating in excess of 10 percent for coronary artery disease prior to February 15, 2011.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran's spouse and daughter-in-law

ATTORNEY FOR THE BOARD

T. Jiggetts, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to November 1967, to include service in the Republic of Vietnam. 

This case initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that denied service connection for sleep apnea; and, from a September 2011 rating decision of the RO in St. Petersburg, Florida that granted service connection for coronary artery disease, post coronary artery bypass grafting associated with herbicide exposure (now characterized as ischemic heart disease) and assigned a 10 percent rating from November 21, 2000 to February 15, 2011, and a 100 percent rating thereafter.  The Veteran timely appealed, challenging the denial of service connection for sleep apnea, and the 10 percent rating assigned for ischemic heart disease from November 21, 2000 to February 15, 2011.

During the pendency of this appeal, the Veteran died in September 2016.  In April 2017, VA notified the Veteran's surviving spouse that she was an appropriate substitute claimant for the deceased Veteran. The Veteran's surviving spouse is the Appellant herein.

When the case initially came before the Board in June 2017, the Board remanded for a BVA hearing.  A videoconference hearing was held in September 2017.  The Board will now proceed with appellate review.  

FINDINGS OF FACT

1.   The Veteran's sleep apnea is not shown to have developed as a result of an established event, injury, or disease during active service.

2.  Prior to February 25, 2011, the Veteran's coronary artery disease was manifested by evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. 


CONCLUSIONS OF LAW

1.  The criteria for service connection have not been met for sleep apnea. 38 U.S.C. §§ 1110, 1131, 1117 (2012); 38 C.F.R. § 3.303 (2017).

2.  Prior to February 25, 2011, the criteria for an initial rating of 30 percent, but no higher, for ischemic heart disease were met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

At the outset, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, and 5107 (2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c).

In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through a March 2010 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim.  Thereafter, the Veteran was afforded the opportunity to respond.  Hence, the Board finds that the Veteran and Appellant have been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim.  The Board also finds that the March 2010 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b)).  In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies.  The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence.  Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004).  These requirements were met by the aforementioned March 2010 notice letter.  Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the March 2010 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.

The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein.  To that end, the Veteran's service treatment records, as well as post-service treatment records from VA and private treatment providers, have been obtained and associated with the Veteran's claims file.  Additionally, the Appellant has not alleged that there are any outstanding records probative of the claim decided herein that need to be obtained.

Although a VA examination was not provided in connection with the sleep apnea claim, the Board finds that the record does not call for one.  See 38 C.F.R. § 3.159(c)(4) (2017).  In this case, as discussed below, there is simply no indication that the Veteran's sleep apnea was related to his time in service. As such, VA is not required to obtain an examination or medical opinion as to this claim, and therefore, VA has no duty to inform or assist that was unmet.  Duenas v. Principi, 18 Vet. App. 512, 517 (2004).  See also McLendon, 20 Vet. App. at 84-86 (with no indication that a disability or persistent or recurrent symptoms of a disability may be associated with the service or another service-connected disability, claim may be denied where claimant's submissions are insufficient to grant benefits or trigger duty to assist).

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159.

II. Analysis

Sleep Apnea

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999).  Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).

In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). In some cases, lay evidence will be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In Jandreau, the United States Court of Appeals for the Federal Circuit stated that a layperson can identify a simple condition like a broken leg, but not a form of cancer. 492 F.3d at 1377, n. 4. Lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377.  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that varicose veins is a disability that is unique and readily identifiable).

Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). See also 38 C.F.R. § 3.159(a)(2) (2017) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.).  The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  In determining whether documents submitted by an appellant are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted by or on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).

The Veteran, during his lifetime, and the Appellant, after the Veteran's death, contend that the Veteran incurred sleep apnea as a result of his active service. 

To address the first element of service connection, medical evidence of a current disability, the Board reviewed the Veteran's post service treatment records from the Detroit VAMC.  Included in these records is a January 2006 "sleep lab clinical polysomnographic report" which indicates the Veteran underwent a sleep study and was diagnosed with obstructive sleep apnea in January 2006.  Thus, a current diagnosis of sleep apnea is confirmed.  However, the Board notes that this diagnosis of sleep apnea occurred 39 years after the Veteran's discharge from active duty service.

Turning to the second and third elements of service connection, whether sleep apnea or symptoms thereof were present in-service or within one year of separation, and if so, whether there exists a nexus between service and the Veteran's sleep apnea, the Board carefully reviewed the Veteran's service treatment records and post service VA records. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea.

Here, the Veteran's service treatment records reflect there was no complaint, diagnosis, or treatment for sleep apnea, to include any complaints of snoring or trouble sleeping, at any time during service.  As such, the medical evidence of record does not reflect the Veteran suffered with sleep apnea while in service, or within one year of discharge from service. The second element of service connection is thus not satisfied.

Further, the Board notes that the Veteran's post-service treatment records from the Detroit VAMC and the Ann Arbor VAMC reflect the Veteran was diagnosed in 2009 with sleep apnea and over the years he used a CPAP machine.  Although reference is made in these post-service treatment records to the Veteran's sleep apnea, none of these records reflect that his sleep apnea, diagnosed 39 years after the Veteran's discharge from active duty service, incurred in, or is otherwise related to, his active duty service.  As such, the medical evidence of record does not reflect a nexus between the Veteran's diagnosed sleep apnea and his active military service. The Board concedes that the Veteran had a current diagnosis of sleep apnea, but none of his treatment providers provided an opinion that any such disability was related to military service.  Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of any evidence linking the Veteran's sleep apnea to service.

The Board has considered the Veteran's lay statements and the lay testimony of the Veteran's spouse at the Board hearing.  While lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether sleep apnea is related to, caused by, or otherwise linked to service) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Sleep apnea is not the type of condition that is readily amenable to mere lay diagnosis.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Moreover, there is nothing in the record demonstrating that the Veteran or the Appellant received any special training or acquired any medical expertise in such matters.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  As such, although the Board finds the Veteran to be competent to report symptoms he experienced and credible in such reports, he is not competent to assign a diagnosis or etiology to those symptoms.  Thus, the lay evidence in this case does not constitute competent medical evidence and lacks probative value.

In conclusion, upon consideration of all the evidence of record, the Board finds that service connection for sleep apnea is not warranted. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, the preponderance of the evidence is against the Veteran's claim. There is simply no nexus between the Veteran's diagnosed sleep apnea and his active military service.

Rating in Excess of 10 Percent for Ischemic Heart Disease
Prior to February 15, 2011 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present.  38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31 (1999). 

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the 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).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 

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 provide reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The primary concern in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for an increased disability rating, VA has a duty to consider the possibility of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

In this case, the Veteran claimed entitlement to an initial rating in excess of 10 percent for ischemic heart disease. Ischemic heart disease is rated using the General Rating Formula for Diseases of the Heart found in 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). 

Under the General Rating Formula, a 10 percent rating is warranted when there is a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required.

A 30 percent rating is warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. 

A 60 percent rating is warranted when there has been more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricle dysfunction with an ejection fraction of 30 to 50 percent. 

A 100 percent rating is warranted when there is evidence of chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricle dysfunction with an ejection fraction of less than 30 percent. 
 
The Veteran's post-service treatment records are associated with the claims file.  In summary, these reflect the Veteran had severe three vessel coronary artery disease; that he required triple bypass surgery in 1987; that he had surgery in 1998 for the placement of 2 vessel stents; that he had surgery again in 2003 for 1 vessel stent placement; and that he had another bypass surgery and stent placement in 2005.  In addition, the Veteran was continuously monitored and often had complaints of chest pain that sometimes required hospitalization.

An October 2001 cardiology outpatient note states the Veteran had an extensive history of coronary artery disease, multiple angioplasties/stents, and that he experienced substernal chest pressure with most strenuous activity, including walking. A 2003 exercise summary report from Ann Arbor VAMC reflects the Veteran's METs level was zero, although it is unclear from the record if the result was an actual reading of the Veteran's METs level or whether the Veteran in fact underwent stress testing or interview-based testing. In May 2003, the Veteran was noted to have a left ejection fraction of 52 percent, and radiological study conducted in August 2003 showed cardiomegaly. The Veteran was noted in October 2003 to have a good exercise tolerance. Similarly, October 2004 treatment notes document mild left ventricular dilatation, although the treatment provider noted that the Veteran "remains relatively active without ischemic symptoms" and routinely used his treadmill and stationary bicycle without chest pain or other symptoms.  He again reported being able to use his treadmill without chest pain in April 2005, and in August 2005, a stress test was noted not to suggest significant ischemia. A September 2005 radiology report from Ann Arbor VAMC reflects the Veteran had left ventricular ejection fraction at 56 percent.

The Veteran underwent a VA examination in May 2010.  The examiner conducted an in-person examination of the Veteran, reviewed the claims file, and provided a summary of the Veteran's heart condition and various surgeries.  A METs test was not conducted.  The Veteran's left ventricular ejection fraction was not determined, although his heart size was recorded as normal. 

Following a review of the record, the Board finds that an initial rating of 30 percent for the period prior to February 15, 2011, for the Veteran's coronary artery disease is warranted. Here, for the period prior to February 15, 2011, the evidence shows that the Veteran was found on multiple occasions to have evidence of cardiomegaly or cardiac dilatation, warranting a 30 percent rating. The Board finds that the Veteran's symptoms were similar in severity, frequency, and duration throughout the entire period at issue. See Vasquez-Claudio v Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). However, the evidence does not show that there was more than on episode of acute congestive heart failure in any given year of the period at issue, nor was there chronic congestive heart failure, left ventricular dysfunction with an ejection fraction of less than 30 percent, or clear evidence that the Veteran's METs level was less than 5. In reaching this conclusion, the Board acknowledges the 2003 treatment record that appears to indicate that the Veteran's recorded METs level was zero. However, given the other evidence of record as discussed above, all of which indicates a similarity in symptomatology and objective testing, along with the lack of clarity of the 2003 record itself, the Board concludes that the 2003 testing that purports to show a reading of the Veteran's METs level is not probative and thus bears no weight.

In sum, the evidence of record shows that an initial disability rating of 30 percent for the Veteran's ischemic heart disease for the period prior to February 15, 2011, is warranted. To that extent, the claim is granted. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017).



ORDER

Service connection for sleep apnea is denied.

An initial rating of 30 percent for ischemic heart disease is granted for the entire period on appeal prior to February 15, 2011, subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs