Citation Nr: 1804223 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-02 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for sleep apnea, to include as due to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Army with active duty from June 1997 to September 2002 and active duty for training from March 2009 to July 2009 with the Army National Guard. . This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. This claim was previously before the Board in March 2016, at which time it was remanded for further development, to include obtaining an addendum medical opinion. As the March 2016 remand directives have been substantially complied with, claim has now returned to the Board for further appellate action. Stegall v. West, 11 Vet. App. 268. FINDING OF FACT The Veteran's obstructive sleep apnea did not have its onset in service. CONCLUSION OF LAW The criteria for establishing service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) ; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. 38 U.S.C. § 5103(a). Here, letters sent to the Veteran in December 2010 and April 2011, plus additional development letters, satisfied the VCAA notice requirement for his service connection claim because they provided the Veteran with notice that fulfills the provisions of 38 U.S.C. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran may not have been provided with adequate notice before all the claims were adjudicated, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the September 2017 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, the Veteran has had the opportunity to allege that notice in this case was less than adequate and he has not done so. See Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records and post-service VA treatment records have been obtained and associated with the claims file and he has not indicated that there are any additional records that VA should seek to obtain on his behalf. The Veteran was most recently provided with a medical opinion in September 2017. A review of the examination reports shows that they contain sufficient clinical findings and discussion of the history and features of the disabilities to constitute an adequate medical examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has not identified any additional evidence pertinent to his claims, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claims. II. Service Connection The Veteran and his representative assert that he is entitled to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A condition precedent for establishing service connection on a direct or secondary basis is the presence of a current disability. As an initial matter, the Board notes that the Veteran was diagnosed with obstructive sleep apnea in July 2010 as a result of a medical report from an at-home sleep study. See, July 2010 post-service treatment records. Accordingly, the first element for establishing service connection on a direct and secondary basis has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records are silent for in-service treatment or diagnosis of obstructive sleep apnea or any symptoms that could be attributed to obstructive sleep apnea. The Board notes that the absence of documented treatment in service is not fatal to a service connection claim. A veteran is competent to report that which he perceives through his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran has asserted that his sleep related problems began after his military service as a result of his service-connected PTSD. See, January 2014 VA Form 9. The Veteran's assertion of the onset of his obstructive sleep apnea is in line from the report from his July 2010 sleep study, at which time he was diagnosed with mild obstructive sleep apnea. As stated above, the first documented diagnosis of obstructive sleep apnea was not until July 2010, which is several years following the Veteran's discharge from active duty service. The September 2017 VA examiner opined that "there is no evidence to sustain a conclusion that any aspect of the Veteran's military service proximately caused his sleep apnea nor is there any evidence that his sleep apnea had its onset in service." The examiner went on to state that while "the exact onset of the disorder is rarely identifiable, the condition does typically worsen with normal aging/passage of time. The very minimal abnormality on sleep study in 2010, nearly a decade after leaving service, does not support onset of the condition during his service time frame." The examiner also noted that while the Veteran had service in Southwest Asia, the development of the "very minimal abnormalities on the sleep study a decade after the exposure" means that it is "less likely than not any exposure of hazards in his environment during service in Southwest Asia contributed in any way to his later development of sleep apnea." See, September 2017 VA medical opinion. This medical opinion is not contradicted by any other clinical evidence of record and, as the opinion was furnished following a complete review of the Veteran's record and is supported with a thorough rationale, the Board has afforded the opinion high probative value. Additionally, the Board notes that the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Accordingly, for the reasons discussed above, the Board finds that the Veteran is not entitled to service connection for obstructive sleep apnea on a direct basis. 38 C.F.R. § 3.303. Turning to the Veteran's assertion that his sleep apnea disability is either caused or aggravated by his service-connected PTSD, the Board notes that while the Veteran is considered to be competent to report certain symptoms that are observable to a lay person, the Veteran has not shown that he has the medical training necessary to opine on the causation or aggravation of his current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, while the Board has considered the Veteran's subjective reports of symptoms and causation, they do not carry high probative weight. Accordingly, in evaluating the Veteran's claims, the Board will rely on the medical evidence of record. In November 2013, a medical opinion was furnished following a complete review of the Veteran's records. The VA medical examiner opined that "there is no established causal link between posttraumatic stress disorder and sleep disordered breathing at this time." The examiner went on to further state that the Veteran's "most significant risk for obstructive sleep apnea was his body mass index, a known risk factor for the condition." See, November 2013 VA medical opinion. Pursuant to the Board's March 2016 remand directives, another VA medical opinion was obtained from the same VA examiner. Prior to the request for an additional opinion, the Veteran had submitted articles in October 2014 that discussed a relationship between PTSD and sleep apnea, and the examiner was asked to address these articles in her conclusion. Following a review of the literature submitted by the Veteran, the examiner stated that "[n]one of the resources presented identifies a causal relationship with posttraumatic stress disorder causing sleep apnea/sleep disordered breathing. Many medical articles document the frequent concomitant occurrence of a variety of sleep disorders and psychiatric disorders in a given individual but this is not evidence of a causal relationship." With respect to aggravation, the examiner opined that "there is no medically established causal link between posttraumatic stress disorder and sleep apnea at this time." The examiner went on to note that the Veteran was diagnosed with mild sleep apnea in July 2010 and that while his sleep apnea has gotten worse, it is still mild, which is normal as obstructive sleep apnea is a condition that does progress over time. Accordingly, the examiner concluded that the Veteran's obstructive sleep apnea is not as least as likely as not caused or aggravated beyond its normal progression by the Veteran's service-connected PTSD. See, September 2017 VA examination. Again, as this opinion was furnished following a complete review of the Veteran's record and is supported with a thorough rationale, the Board has afforded the opinion high probative value. For the reasons stated above, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's current sleep apnea disability is related to this active duty service or is caused or aggravated by his service-PTSD and therefore, the claim must be denied. ORDER Service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder, is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs