Citation Nr: 1803246 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for asthma, including as secondary to service-connected allergic rhinitis. 2. Entitlement to service connection for sleep apnea, including as secondary to service-connected allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1994 to November 1998. This case initially came before the Board of Veterans' Appeals (Board) on appeal from January 2014 and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied service connection for asthma and sleep apnea, respectively. The Veteran timely appealed. FINDINGS OF FACT 1. The Veteran's asthma is not shown to have developed as a result of an established event, injury, or disease during active service; asthma was not caused or aggravated by the Veteran's service-connected allergic rhinitis. 2. The Veteran's sleep apnea is not shown to have developed as a result of an established event, injury, or disease during active service; sleep apnea was not caused or aggravated by the Veteran's service-connected allergic rhinitis. CONCLUSIONS OF LAW 1. The criteria for service connection, to include on a secondary basis, have not been met for asthma. 38 U.S.C. §§ 1110, 1131, 1117 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection, to include on a secondary basis, have not been met for sleep apnea. 38 U.S.C. §§ 1110, 1131, 1117 (2012); 38 C.F.R. §§ 3.303, 3.310 (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 July 2011 notice letter, the Veteran received notice of the information and evidence needed to substantiate her claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate her claim. The Board also finds that the July 2011 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 she 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 July 2011 notice letter. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the July 2011 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 treatment providers, have been obtained and associated with the Veteran's claims file. VA examinations were obtained in July 2016 and November 2016, reports of which are of record. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that both the July 2016 and the November 2016 VA examinations obtained in this case are adequate, as they are predicated on full consideration of the Veteran's medical records and reported history, as well as the service treatment records and specific lay statements of the Veteran. The examinations considered the pertinent evidence of record and provide explanations for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159 (c)(4). Additionally, the Veteran has not alleged that there are any outstanding records probative of the claim decided herein that need to be obtained. 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 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 addition to the requirements of service connection as detailed above, regulations also provide that service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Further, any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). 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) (2016) (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). asthma The Veteran contends that her asthma was caused or aggravated by her service-connected allergic rhinitis. 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 Corpus Christi VAOPC. These records clearly reflect the Veteran had been diagnosed with asthma. Thus, a current diagnosis of asthma is confirmed. Turning to the second and third elements of service connection, whether asthma 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 asthma, the Board carefully reviewed the Veteran's service treatment records and post service VA and private treatment 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 asthma, to include as due to service connected allergic rhinitis. The Veteran's service treatment records reflect there was no complaint, diagnosis, or treatment for asthma at any time during service. As such, the medical evidence of record does not reflect the Veteran suffered with asthma while in service, or within one year of discharge from service. The second element of service connection on a direct basis is thus not satisfied. The Veteran's post-service treatment records from South Texas Foot Care from March 2010 through June 2010 are associated with the Veteran's claim file. Noted in each of these records is a review of the Veteran's body systems, and where it refers specifically to the Veteran's "respiratory" system, the records reflect: Negative for asthma, SOB, sleep apnea, snoring, or other breathing problems. An August 2011 VA examination was conducted for the Veteran's allergic rhinitis. As part of his written report, the examiner included reference to the Veteran's chest and lungs: Normal gross inspection of the chest and lungs. There is no evidence of tenderness on palpation. Breath sounds are symmetric. No rhonchi, rales or wheezes. Expiratory phase is within normal limits. Thus, there is no indication the Veteran suffered with asthma at that time. Post-service VA treatment records from Corpus Christi OPC are also associated with the Veteran's claims file. An October 2014 "Problem List" lists the Veteran's active problems, and included in that list is asthma, which was determined to be "stable on current meds." A November 2016 VA examination was conducted to determine if the Veterans' asthma was due to, or the result of, her service connected allergic rhinitis. The examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's asthma is due to or the result of her service-connected allergic rhinitis. As rationale, the examiner stated: After physical exam and review of records dated 01-09-1995, 06-16-2014, 05-26-2015, it is less likely than not that the claimant's asthma was aggravated beyond its natural progression by her allergic rhinitis. Asthma pathology involves inflammation and spasm of airways, and the progression of those pathologies would not be affected by the presence of allergic rhinitis. As such, the medical evidence of record does not reflect a nexus between the Veteran's diagnosed asthma and her active military service, or between asthma and service-connected allergic rhinitis. The Board concedes that the Veteran had a current diagnosis of asthma, but none of her treatment providers provided an opinion that any such disability was related to military service or to her service-connected allergic rhinitis. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of any evidence linking the Veteran's asthma to service or to her service-connected disability. The Board has considered the Veteran's lay statements that her asthma is a result of her service-connected allergic rhinitis. While lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether asthma is related to, caused by, or otherwise linked to service, or to service-connected disability) 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). Asthma 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 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 she experienced and credible in such reports, she 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 asthma is not warranted on a direct or secondary basis. 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 asthma and her active military service or her service-connected allergic rhinitis. sleep apnea The Veteran contends that her sleep apnea was caused or aggravated by her service-connected allergic rhinitis. 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 Corpus Christi VAOPC. Included in these records is a June 2014 record which indicates the Veteran underwent a sleep study and was diagnosed with obstructive sleep apnea. Thus, a current diagnosis of sleep apnea is confirmed. However, the Board notes that this diagnosis of sleep apnea occurred 16 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 and private treatment 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, to include as due to service connected allergic rhinitis. 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 on a direct basis is thus not satisfied. The Veteran's post-service treatment records from South Texas Foot Care from March 2010 through June 2010 are associated with the Veteran's claim file. Noted in each of these records is a review of the Veteran's body systems, and where it refers specifically to the Veteran's "respiratory" system, the records reflect: Negative for asthma, SOB, sleep apnea, snoring, or other breathing problems. Post-service VA treatment records from Corpus Christi OPC are also associated with the Veteran's claims file. A May 2015 note reflects the Veteran underwent a sleep study, was diagnosed with sleep apnea, and over the years has used a CPAP machine with good results. Although reference is made in these post-service treatment records to the Veteran's sleep apnea, none of these records reflect that her sleep apnea, diagnosed 16 years after the Veteran's discharge from active duty service, incurred in, or is otherwise related to, her active duty service or to her service-connected allergic rhinitis. A July 2016 VA examination was conducted to determine if the Veterans' sleep apnea was due to, or the result of, her service connected allergic rhinitis. The examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's sleep apnea is due to or the result of her service-connected allergic rhinitis. As rationale, the examiner stated: obstructive sleep apnea occurs when the muscles in the back of your throat relax. When the muscles relax, your airway narrows or closes as you breathe in, and you can't get an adequate breath in. Thus, a nexus for claimed sleep apnea as result of allergic rhinitis condition has not been established. Additionally, a comprehensive review of the literature revealed that obstructive sleep apnea is largely the result of nasal and pharyngeal abnormalities. As such, the medical evidence of record does not reflect a nexus between the Veteran's diagnosed sleep apnea and her active military service, or between sleep apnea and service-connected allergic rhinitis. The Board concedes that the Veteran had a current diagnosis of sleep apnea, but none of her treatment providers provided an opinion that any such disability was related to military service or to her service-connected allergic rhinitis. 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 or to her service-connected disability. The Board has considered the Veteran's lay statements. In correspondence received from the Veteran in September 2017, the Veteran states that "...there must be an environmental introduced when I went to Bosnia, seeing I went into the military with good health and now must utilize a CPAP and oxygen at night...". 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, or to service-connected disability) 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 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 she experienced and credible in such reports, she 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 on a direct or secondary basis. 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 her active military service or her service-connected allergic rhinitis. ORDER Service connection for asthma is denied. Service connection for sleep apnea is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs