Citation Nr: 1805205 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-12 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to a service connected disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Marine Corps, with active duty service from April 1969 through June 1970. The Veteran served in the Vietnam War and is a recipient of the National Defense Service Medal, Combat Action Ribbon, and the Purple Heart, among other distinctions. This appeal comes to the Board of Veterans' Appeals ("Board") from a March 2009 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Waco, Texas (hereinafter Agency of Original Jurisdiction ("AOJ")). The Veteran testified at a September 2016 Board videoconference hearing, held before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. In May 2017, the Board remanded the Veteran's claim for entitlement to service connection for a sleep apnea disability to the AOJ for further development. Specifically, the Board directed the AOJ to afford the Veteran a VA medical examination and obtain a medical opinion which addressed the etiology of his sleep apnea disability. A review of the claims file shows the Veteran was scheduled for a VA examination in July 2017. As such, the Board finds that the AOJ has substantially complied with the May 2017 remand directives and that the matter has been properly returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT An obstructive sleep apnea disability was not shown during the Veteran's active duty service, and post-service findings for obstructive sleep apnea are not etiologically related to service, to include any service connected disability. CONCLUSION OF LAW The criteria for service connection for an obstructive sleep apnea disability, to include as secondary to a service connected disability, have not been met. 38 U.S.C. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In regards to the Veteran's claim for entitlement to service connection, the Board notes that the VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain on his behalf, in correspondence dated February 2009 and June 2017. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disability to active service and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in the February 2009 VCAA notice, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran has been provided with a VA examination and medical opinion, which addressed the Veteran's reported symptoms, frequency, and severity and the interference these symptoms cause in his ability to complete basic daily tasks. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In response to the Board's May 2017 remand, the Veteran was afforded a VA examination and medical opinion in July 2017. See Stegall, 11 Vet. App. 268 at 271. During this July 2017 examination, the pertinent medical history was noted by the examiner and the examiner's findings were set forth in detail, allowing for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the July 2017 examination is adequate for rating purposes and an additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") via video conference hearing in September 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claims that was lacking to substantiate the claims for benefits. The VLJ specifically noted the issues as including the issues listed on the title page of this decision. The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist since the date of the Board's May 2017 remand. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Lastly, 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 of the evidence submitted by the Veteran or on his behalf. See Gonzalez 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 claims. 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, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). General Laws and Regulations Governing Entitlement to Service Connection: In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That being the relevant, generalized, law applicable to the Veteran's claim, the Board finds the preponderance of the evidence is against the claim for entitlement to service connection for a sleep apnea disability. As an initial matter, the Board observes that the Veteran has a current diagnosis for sleep apnea. The first and most fundamental requirement for any service-connection claim is the existence of a current disability. 38 U.S.C. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A review of the Veteran's medical records indicates he was diagnosed with sleep apnea following a May 2008 sleep study. See Oklahoma City VAMC Records. Therefore, the Board finds the first element of service connection is met. However, despite the existence of a current disability, the Board finds no evidence of either an in-service occurrence of a sleep apnea disability or any reports of related symptoms. A review of the Veteran's service medical records indicates that at no point did the Veteran ever report or seek treatment for any symptoms of sleep disturbances, daytime fatigue, or instances of loud snoring. The Board has additionally considered the circumstances of the Veteran's active duty service. As noted above, the evidentiary record reflects that the Veteran is in receipt of the Combat Action Ribbon. Therefore, the provision of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). In statements to the Board, the Veteran has stated that he began experiencing symptoms of difficulty sleeping during his active duty service. See e.g. Hearing Transcript. The Veteran has also reported that his sleeping/breathing problems may have been caused by his military service, as he reported he fractured his nose during boot camp. See March 2009 Correspondence. However, even after granting the Veteran the benefit of the doubt with regard to these statements, the Board finds that insufficient evidence of a nexus between the Veteran's current sleep apnea disability and his active duty service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to 38 U.S.C. § 1154(b), must still submit sufficient evidence of a casual nexus between that in-service event and his current disability). In this regard, the Board finds the conclusions of the July 2017 VA examiner to be probative. After considering the Veteran's reports of a fractured nose and his reports of interrupted sleep, heavy snoring, and gasping for air during service, the examiner opined that to conclude these were the early signs of an obstructive sleep apnea disability would be purely speculative. Continuing, the examiner explained that a differential diagnosis for obstructive sleep apnea requires a clinician to rule out other conditions that produce similar symptoms. As an example, the examiner cited "Up to Date," which showed symptoms of gastroesophageal reflux disease can manifest symptoms such as abrupt awakenings, chocking, or gasping sensations during sleep. These symptoms are similar to those of a sleep apnea disability. Therefore, the examiner explained any opinion that the Veteran's reported in-service symptoms were the initial manifestations of his current sleep apnea disability would be entirely speculative. The Board finds this July 2017 medical opinion to be both probative and entitled to significant weight. Significantly, the examiner considered the Veteran's lay reports of in-service symptoms and explained that while these symptoms were similar in nature to an obstructive sleep apnea disability, to make a casual connection between the two would be speculative. The examiner explained why this would be speculative, as he included citations to medical literature showing that these symptoms can be attributed to other common diseases, and therefore, without a confirmatory sleep study no positive nexus could be drawn. The Board finds this opinion to be clear and supported by a clear rationale allowing for informed appellate review under applicable VA laws and regulations. Moreover, service connection may not be predicated on a resort to speculation or remote possibility. See 38 C.F.R. § 3.102; See also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by in- service events is insufficient to establish service connection). Thus, while the Board has considered the Veteran's reports of an in-service occurrence of sleep apnea symptoms, the Board finds these reports, without more, are insufficient to grant his claim of entitlement to service connection. The Board has additionally reviewed the Veteran's longitudinal medical records, but finds no support for a continuity of symptoms following the Veteran's separation from active duty service. As noted above, the Veteran was not formally diagnosed with a sleep apnea disability until May 2008. While symptoms of a disability may be present long before a formal diagnosis, the Board finds that the Veteran's reports of symptoms to his examining physicians do not support a finding of continual symptoms. For example, the Veteran was seen with regularity for a sinusitis disability. See Oklahoma City VAMC Records. Despite these regular examinations, it was not until a July 2007 encounter that the Veteran reported symptoms of interrupted sleep due to breathing difficulties. During one examination in July 2007, the Veteran reported a history of regular sinus infections averaging approximately three times per year. The Veteran stated that he had a long history of these sinus infections, and stated his belief that they could have been caused by a history of nose fractures. In addition to one fracture during his active duty service, the Veteran stated that he had broken his nose on two additional occasions. Again, while the Board has considered the Veteran's reports of an in-service nose fracture, and finds his statements to be credible, the Board finds that this occurrence alone does not establish entitlement to service connection for a sleep apnea disability. Rather, as noted above, the Veteran's medical records did not show any reports of symptoms consistent with a sleep apnea disability until several decades following his separation from active duty service. While the Board may consider the lack of contemporaneous medical evidence as a factor, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, in the Veteran's appeal, the lack of continuous treatment for symptoms of a sleep apnea disability is a factor the Board finds significant when determining the etiology of the disability. In this regard, the Board finds the July 2017 VA examiner's medical opinion provides a clear and well-reasoned explanation as to the timing and onset of the Veteran's sleep apnea diagnosis. As noted above, the examiner concluded that it would be speculative to conclude that the Veteran's reports of in-service symptoms were the initial onset of his current sleep apnea diagnosis. In addition to this conclusion, the examiner cited to "Up to Date," which explained the causes and underlying etiology of a sleep apnea disability. For example, the citation explains that "the important risk factors for obstructive sleep apnea are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities." With this information in mind, the Board observes that at the time the Veteran was diagnosed for sleep apnea, and/or began reporting symptoms, he was 58 years of age and had reported a recent history of a 20 pound weight gain after he quit smoking. Finally, with regard to the whether the Veteran's current sleep apnea disability is caused by or aggravated by any service connected disability, the Board similarly finds the preponderance of the evidence is against such a finding. In statements to the Board, the Veteran has stated that he believes his sleep apnea is related, or aggravated, by his post-traumatic stress disorder ("PTSD"). However, the Board finds the July 2017 VA examination and medical opinion provides probative evidence that there is no such relationship between the two disabilities. The examiner cited to the medical literature which reported that PTSD is not considered a risk factor for sleep apnea. Continuing, the examiner explained that while PTSD and sleep apnea can co-exist and cause a pattern of obstructed sleep, there is no evidence which shows PTSD causes or aggravated the underlying symptoms of a sleep apnea disability. Overall, the Board gives the July 2017 medical examiner's conclusions significant weight. As outlined above, each opinion is thorough and supported by a clear rationale and includes citations to the medical evidence of record. The examiner explains, in medical terms, why it would be speculative to find a nexus between the Veteran's current sleep apnea disability, and his reports of symptoms occurring in-service, to include reports of a fractured nose. Similarly, the examiner explains the risk factors for developing a sleep apnea disability and includes citations to medical literature. Finally, the examiner explains why there is no causal relationship between the Veteran's sleep apnea disability and his service-connected PTSD disability. As such, the Board finds this opinion is of significant probative value. The Board has considered the Veteran lay statements, wherein he expresses a belief that his sleep apnea disability is a result of his active duty service and/or his service connected disabilities. As a lay person, the Veteran is competent to report what comes to him through his senses, and these observations "may provide sufficient support for a claim of service connection." See Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). However, in such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this regard, the Board finds the question of etiology of the Veteran's sleep apnea disability is a complex question for which the Veteran lacks medical training and experience. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). While the Veteran is competent to report what he experiences, he is not competent to ascertain that etiology of his sleep apnea disability and its relation to active duty service. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render an opinion concerning medical issues regarding the etiology of his sleep apnea disability. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Therefore, the Board has reviewed all the medical evidence of record, but finds no probative evidence which establishes a causal link between the Veteran's military service and his subsequent diagnosis for a sleep apnea disability. Based on all the foregoing, there is simply no persuasive and competent medical evidence which relates the Veteran's sleep apnea disability to his military service or any service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection, on either a direct or secondary basis. As the evidence is against the Veteran's claim, there is no reasonable doubt to resolve in his favor. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service connected disability, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs