Citation Nr: 1805141 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-14 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for complex apnea syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1986 to October 1990. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The Board most recently remanded the claim to the RO in August 2017 for additional development and the claim has now been returned to the Board for further appellate review. In June 2012, the Veteran testified before the undersigned Veterans Law Judge during a hearing held at the RO. A transcript of the proceeding has been associated with the record. FINDING OF FACT Clear and unmistakable evidence demonstrates that the Veteran's complex sleep apnea syndrome preexisted service and was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for complex sleep apnea syndrome have not been met. 38 U.S.C. §§ 1110, 1111, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Due Process Considerations The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. VA's duty to notify was satisfied by letters in December 2010 and February 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. The Veteran's lay statements, service treatment records, VA treatment records, and identified and available private treatment records have been associated with the evidentiary record. Additionally, in addition to VA treatment, the Veteran was afforded VA examinations in March 2011 and January 2015 to assist him in his claim. Taken as a whole, the Board finds that these VA examinations provide sufficient medical evidence and argument to adjudicate the claim. Thus, with respect to the Veteran's claim, there is no additional development that needs to be undertaken or evidence that needs to be obtained. Legal Criteria Service connection may be granted 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. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his complex sleep apnea syndrome preexisted his military service and was permanently aggravated therein. Specifically, he claims that he has had sleep apnea "all of [his] life" but that the condition went undiagnosed until after his military service. The Veteran further claims that his disorder was permanently worsened during service due to stress and because he was "picked on" by his supervisors and others while on active duty. Service treatment records reflect intermittent reports of sleep disturbances and are negative for a sleep disorder diagnosis. Notably, the Veteran's September 1986 enlistment physical examination found no relevant abnormalities and the Veteran denied having frequent trouble sleeping on the accompanying report of medical history. A January 1989 service treatment record includes his report of stomach pain that caused insomnia; he was treated for gastrointestinal hyperacidity. In July 1990, the Veteran requested sleeping pills and reported that he had trouble sleeping due to worry or stress; he indicated that he had received three "NJs," one due to sleeping through a watch. No pertinent diagnosis was provided. The September 1990 discharge physical examination did not reveal any relevant abnormalities and the Veteran denied having frequent trouble sleeping on the accompanying report of medical history. Post service, private medical records dated in October 2006 show the first diagnosis of complex sleep apnea. The associated records reflect his history of excessive sleepiness associated with snoring, witnessed apnea, and notation of a hypoxia episode following a surgical procedure. Subsequent records indicate further assessment and treatment of the Veteran's sleep disorder. The Veteran underwent a VA examination in March 2011, at which time the examiner essentially opined that the Veteran's current sleep apnea was less likely than not due to or caused by his service, to include his complaints of not sleeping, sleeping through duty and/or the request for sleeping pills during service. This opinion, however, does not address whether the Veteran's sleep apnea preexisted service and whether it was aggravated by service. Thus, the March 2011 VA opinion is of limited probative value. In support of his claim, the Veteran submitted a June 2012 opinion from his private physician, B.H., M.D., who opined that the stress of the Veteran's service likely led to an exacerbation of his sleep apnea symptoms. The physician further stated that the Veteran's complex sleep apnea was completely untreated and unrecognized at the time of his service and that such would have led to profound daytime sleepiness, poor concentration and memory, significant fatigue and an inability to perform his duties. Dr. B.H. also commented that the Veteran's sleep apnea was so severe that it had "most assuredly" been going on as an adult and "likely" into adolescence. The physician opined that the stress of the Veteran's miliary service likely led to an exacerbation of his sleep apnea symptoms as well. In a December 2014 letter, Dr. B.H. relayed the Veteran's history of symptoms of fatigue, decreased energy, and poor concentration prior to service and eventual diagnosis of sleep apnea in 2006. The physician stated that the pre-service symptoms described by the Veteran are common for sleep apnea and that it is reasonable to ascertain the Veteran had undiagnosed sleep apnea all along. He stated that beyond the Veteran's history and "medical decision making," he had no objective evidence in support of this conclusion. The Veteran underwent an additional VA examination in January 2015. Based on a review of the evidence of record, the examination findings and the Veteran's own statements, the examiner opined that the evidence clearly and unmistakably shows that the Veteran's complex sleep apnea existed prior to his entry onto active duty in 1986. In further support of this conclusion, the examiner noted the 2012 private physician's comment that the Veteran's sleep apnea existed for all of his adult life and likely into his adolescence. The examiner also opined that the evidence clearly and unmistakably shows that the preexisting complex sleep apnea syndrome was not aggravated by service or that any increase in disability was due to the natural progression of the disease. The examiner rationalized that the service treatment records "clearly show" the Veteran's denial of frequent trouble sleeping upon entrance and separation from service. As for the Veteran's intermittent reports of insomnia during service, the examiner highlighted that his symptoms were due to other medical problems, such as stomach pain and stress. He explained that the entire population will experience intermittent episodes of insomnia due to minor physical problems, work problems, family problems, and other stress issues. The examiner then characterized the in-service entries of these occurrences as "insignificant." Given the private opinions from Dr. B.H. and the January 2015 VA examiner's opinion, the Board finds that there is clear and unmistakable evidence that the Veteran's complex sleep apnea syndrome existed prior to his active duty service. Thus the presumption of soundness at enlistment has been rebutted and the Board must consider whether the Veteran's preexisting disorder permanently worsened due to his military service. In light of the above evidence of record, the Board finds that the Veteran's complex sleep apnea syndrome clearly and unmistakably was not aggravated by his service beyond the natural progress of the disorder. The Board finds the January 2015 VA examiner's opinion weighing against the claim to be the most probative evidence of record regarding whether the Veteran's preexisting sleep apnea permanently worsened due to service because the opinion is supported by a detailed rationale and is consistent with the other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. Ap. 295 (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); 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 weigh against contrary opinions"). Moreover, the January 2015 VA opinion is the only opinion of record that gives consideration to all of the pertinent evidence, to include the Veteran's service treatment records and his statements regarding the progression of his sleep apnea. Thus, the January 2015 examiner's opinion outweighs the other medical opinions of record. The Board acknowledges the June 2012 opinion by Dr. B.H. Although the physician commented that the stress of military service likely exacerbated the Veteran's sleep apnea symptoms, the opinion does not address whether the disorder clearly and unmistakably was aggravated beyond the natural progression of the disorder as a result of his military service. Thus, the private physician's opinion is of limited probative value in this regard. To the extent that the Veteran himself opines that his sleep apnea preexisted service and was aggravated therein, the Board acknowledges that the Veteran is competent to report facts within his personal observation, such as difficulty sleeping. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Ultimately, the Board places more probative weight on the contemporaneous objective medical evidence and the January 2015 VA examiner's opinion, which is supported by a detailed rationale. Considering the most probative evidence of record, the Board concludes that service connection for complex sleep apnea is not warranted. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for complex sleep apnea syndrome is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs