Citation Nr: 18150102 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-12 441 DATE: November 14, 2018 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the upper and lower extremities is remanded. Entitlement to an initial disability evaluation in excess of 50 percent for PTSD prior to April 4, 2012 and in excess of 70 percent from April 4, 2012 to November 15, 2012 is remanded. Entitlement to an effective date earlier than September 24, 2010, for the grant of service connection and assignment of a 50 percent disability evaluation for PTSD is remanded. Entitlement to effective date earlier than November 15, 2012, for the grant of a 100 percent disability evaluation for PTSD is remanded. FINDING OF FACT Any current sleep apnea is not of service origin nor is it etiologically related to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from January 1969 to December 1970. Sleep Apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran has indicated his belief that his current sleep apnea either had its onset in service, or, in the alternative, that his sleep apnea is caused or aggravated by his service-connected PTSD. A review of the Veteran's service treatment records reveals no complaints or findings of sleep apnea or sleep problems. At the time of the Veteran's December 1970 service separation examination, normal findings were reported for the sinuses, lungs and respiratory system. There were no notations of sleep apnea or sleep problems at that time. In conjunction with his claim, the Veteran submitted a report from his treating physician indicating that he had been diagnosed as having sleep apnea in August 2016, with the onset prevalent with the onset of PTSD diagnosis. The Veteran also submitted an article showing a connection between hypertension and sleep apnea and a portion of a claimed Board decision where it was found that the Veteran’s current sleep apnea was aggravated by his PTSD. In conjunction with the Veteran’s claim, a VA medical opinion was obtained addressing whether the Veteran’s PTSD caused or aggravated his sleep apnea. In a December 2017 VA examination report, it was indicated that the Veteran’s claims folder had been reviewed electronically. Following a review of the entire record, the examiner indicated that the condition claimed was less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition. The examiner noted that the Veteran's VA and private treatment records regarding sleep apnea had been reviewed and that the Veteran was currently service-connected for PTSD, which was assumed, as he was discharged from service in 1970, to be a condition of long duration. She noted that he was not diagnosed with sleep apnea until August 2016, when he was 70 years old, and weighed 271 lbs., per UC Health sleep clinic notes. She observed that while associations had been found between PTSD and sleep apnea, no causation of sleep apnea by PTSD had been clearly demonstrated. She indicated that whether either of these conditions helped to cause the other or, if so, by what mechanism, was not known. However, obesity leading to mechanical obstruction of the airway was one of the most common causes of sleep apnea and increasing age was a known risk factor as well. She stated that given that the Veteran's sleep apnea was not in evidence for many years after onset of PTSD, and it was not otherwise unexplained, it was less likely than not to have been directly caused by PTSD. The examiner also indicated that the claimed condition/diagnosis was not at least as likely as not aggravated beyond its natural progression by the service-connected condition. She noted that the January 2017 opinion which was not signed by the private physician and was of uncertain authorship, stated that sleep apnea was aggravated by PTSD and gave a rationale which basically stated that PTSD aggravated sleep apnea because short sleeping caused by either condition was associated with hypertension. She noted that the opinion referenced an article by a Dr. Robert S. Rosenberg to this effect. However, the association of short sleep with hypertension described therein did not actually support the idea that PTSD directly increased the severity of obstructive sleep apnea or vice versa, and was only tangentially related to the question at hand. She noted that the Veteran's PTSD, which was connected with service between 1/1969 and 12/1970, was present for many years before the development of sleep apnea. Of note, a lay statement from the Veteran’s wife, which was provided in May 2012, made references to the effects of PTSD on his sleep, and it exclusively referred to yelling and violent behavior, with no mention of signs of sleep disordered breathing. She indicated that given the Veteran’s age at the time of sleep apnea diagnosis in August 2016, and the lack of any documentation of sleep apnea symptoms in the available record that predated his referral to UC Health for polysomnogram in April 2016 by VA PCP Dr. D., the presence of PTSD was not shown to have accelerated the appearance of sleep apnea, or to have resulted in a level of severity of PTSD beyond what would be expected in the presence of his other risk factors. The Veteran is in receipt of a disability rating for PTSD that contemplates the symptom of “chronic sleep impairment” attributed to his PTSD by mental health treatment records. This symptom is distinguishable from clinical sleep apnea, a pulmonary sleep disordered breathing diagnosis. The Board finds, after a review of all the evidence, lay and medical, that the weight of the evidence is against the conclusion that the Veteran's current sleep apnea had its onset in service. The Veteran's service treatment records contain no complaints or findings of snoring or sleep problems or diagnoses of sleep apnea. Normal findings were reported for the sinuses, throat, lungs, and respiratory systems, with no notation of sleeping problems at the time of the Veteran's service separation examination, and no notation of sleep apnea until many years following service. As to the Veteran's reports that he has had sleep apnea since service, the Board finds that the contemporaneous evidence shows that the Veteran did not report that he had snoring/sleep apnea problems on his service separation examination. Moreover, on his initial application for compensation and for many years thereafter, until 2017, the Veteran did not report having sleep apnea or snoring or sleep disordered breathing problems. This suggests to the Board that there were no pertinent snoring/sleep apnea problems prior to 2016. While an absence of contemporaneous treatment records is not necessarily indicative of the absence of symptomatology, where, as here, a veteran sought treatment and reported symptoms for other disabilities, it becomes reasonable to expect that the Veteran is reporting all symptoms he is experiencing. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Based on the language and context of the private and VA treatment records prior to 2016, the Board finds that the Veteran was reporting all the disabilities that he was experiencing at that time. Therefore, the Veteran's failure to report any complaints of snoring/sleep apnea for many years is persuasive evidence that he was not then experiencing any relevant problems and outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. For these reasons, the Board concludes that the assertions of snoring/sleep apnea in service and since service are not credible. As to the Veteran's belief that his current snoring/sleep apnea disorders are related to his period of service, the question of causation of a complex medical condition, such as sleep apnea, extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. See Jandreau v. Nicholson, supra. It has not been shown that he has the requisite training to diagnose the cause of his current sleep apnea. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide medical evidence and/or an opinion relating his current sleep apnea to his period of service. He has not provided either medical evidence or an opinion to support this proposition. As to the question of secondary service connection, as noted above, the Veteran is not competent to render an opinion as to whether his current sleep apnea is proximately due to or aggravated by his service-connected PTSD, for the same reasons given above in the context of direct service connection. The Veteran submitted a January 2017 medical examination report from his private physician indicating that he had sleep apnea which became prevalent with the onset of his PTSD. The record demonstrates that the Veteran was diagnosed with sleep apnea years after his initial diagnosis of PTSD. While an opinion accompanied the report, as noted by the VA examiner, it was not within the report, with the author being unknown. As to the medical articles referenced in connection with the secondary service connection claim, treatise evidence must discuss generic relationships with a degree of certainty such that under the facts of this particular case there is at least a plausible causality based on objective facts rather than on unsubstantiated lay opinion. See, e.g., Wallin v. West, 11 Vet. App. 509, 514 (1998); Timberlake v. Gober, 14 Vet. App. 122, 130 (2000) (citing Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000)). The article/medical treatises referenced by the appellant are general in nature as opposed to specifically addressing the Veteran's case and are of little probative value. In contrast, VA obtained medical opinions as to whether the Veteran’s sleep apnea was caused and/or aggravated by his service-connected PTSD. The Board is giving these opinions the most probative weight. The Veteran's entire record, which at the time included his service treatment records, private and VA treatment records, and statements from the Veteran, was reviewed. Based on all the evidence and examination of the Veteran, the examiner rendered an opinion that was supported by a detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. The examiner also addressed the January 2017 private report, the opinion which accompanied the report, and the medical articles referenced in the opinion. Thus, the Board finds this opinion to be the most probative evidence of record. In this case, the Veteran's sleep apnea was not shown during active service or for many years thereafter. The sleep apnea has also not been shown to be related to the Veteran's service-connected PTSD. The weight of the competent evidence demonstrates that the currently diagnosed sleep apnea was neither incurred in nor related to active service nor secondary to a service-connected disorder. For these reasons, the Board finds that service connection for sleep apnea is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Peripheral Neuropathy of the Upper and Lower Extremities As it relates to the claim of service connection for peripheral neuropathy of the upper and lower extremities, the issue has been expanded to include as secondary to service-connected diabetes mellitus (DM). In this regard, the Veteran was afforded a VA examination in June 2013. At that time, the examiner indicated that etiology remained unclear for right upper extremity and bilateral lower extremity neuropathy, as noted per history and examination presented in 2007-08 time frame. The examiner observed that this was several years prior to the diagnosis of DM. Therefore, it was less likely than not secondary to DM. However, the examiner did not address the question of aggravation by the service-connected DM. As such, the matter should be remanded for an additional VA examination to determine the etiology of any current bilateral upper and lower extremity neuropathy and its relationship, if any, to the Veteran’s period of service and/or his service-connected DM, to include by way of aggravation. Effective Date Earlier than November 15, 2012, for the Grant of a 100 Percent Disability Evaluation for PTSD; Initial Disability Evaluation in Excess of 50 Percent for PTSD Prior to April 4, 2012 and in Excess of 70 Percent From April 4, 2012 to November 15, 2012; Effective Date Earlier than September 24, 2010, for the Grant of Service Connection and Assignment of a 50 Percent Disability Evaluation for PTSD; As it relates to the above claims, the RO, in a May 2011 rating determination, granted service connection for PTSD and assigned a 50 percent evaluation effective September 24, 2010. In July 2011 and August 2011 statements, the Veteran requested an effective date back to 2007, the date of his initial request for service connection for PTSD. The Veteran also indicated that he had been receiving treatment since 2007 and requested that these records be obtained. In May 2012, the Veteran and his spouse both indicated that his condition had worsened. The Board accepts these statements as notices of disagreement with the effective date assigned for the PTSD and the assigned 50 percent disability evaluation. As such, the claim has remained opened since the date of the grant of service connection. However, a Statement of the Case has not yet been issued. Accordingly, a remand is warranted. Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued an October 2012 rating determination indicating that clear and unmistakable error regarding an earlier effective date for PTSD had not been found. However, this is not the appropriate method for addressing the earlier effective date claim arising from the initial grant of service connection for PTSD nor does it address the Veteran’s request for a higher initial disability evaluation. Moreover, these issues can have a direct impact upon the claim for an effective date earlier than November 15, 2012, for the grant of a 100 percent disability evaluation for PTSD. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for the appropriate VA examination by a VA examiner to assist in determining the nature and etiology of any current neuropathy of the upper and lower extremities. The entire record should be made available to the examiner in conjunction with the examination and the examiner should note such review in his/her report. All necessary tests should be performed. The examiner is requested to offer the following opinions: Identify all types of neuropathy which are present in the upper and lower extremities. Is it at least as likely as not (50 percent probability or greater) that any current upper and lower extremity neuropathy, if found, had its onset in service or is otherwise related to the Veteran's service, to include as a result of exposure to herbicides in Vietnam? If not, is it as likely as not (50 percent probability or greater) that any current upper and/or lower extremity neuropathy is caused by the service-connected diabetes mellitus? If not, is it at least as likely as not (50 percent probability or greater) that any current upper or lower extremity neuropathy is aggravated by the service-connected diabetes mellitus? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. 3. Issue a statement of the case (SOC) addressing the Veteran's claims of entitlement to an initial disability evaluation in excess of 50 percent for PTSD prior to April 4, 2012 and in excess of 70 percent from April 4, 2012 to November 15, 2012; and, entitlement to an effective date earlier than September 24, 2010 for the grant of service connection and the assignment of a 50 percent evaluation for PTSD. The Veteran should be informed that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning these claims. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.Kelly, Counsel