Citation Nr: 18158972 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 08-27 120 DATE: December 18, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s sleep apnea is etiologically related to service, to include claimed exposure to mustard gas or Lewisite, or was caused or aggravated by service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1972 to February 1975. 1. Entitlement to service connection for sleep apnea The Veteran contends that she developed sleep apnea during active service, possibly as a result of exposure to mustard gas or Lewisite, or that it developed secondary to or was aggravated by service-connected disabilities. After a thorough review of the evidence, the Board finds that entitlement to service connection for sleep apnea is not warranted. Prior to discussing the merits of the underlying claim, the Board acknowledges that the Veteran contends, through her representative, in the October 2018 brief to the Board that VA failed its duty to assist by not fully complying with the remand directives of the previous Board decision in March 2017 and by not providing an adequate VA medical opinion. The Board finds that VA has complied with the remand directives and has fulfilled its duty to assist as outlined below. 38 C.F.R. § 3.159. The Veteran contends that the January 2018 VA examiner’s practice is as an internist and that, because he is not a “sleep specialist or pulmonologist,” he is not a “qualified examiner” as required by the Board’s remand. The Board is entitled to presume the competence of a VA examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). The Court has specifically upheld the adequacy of VA examinations completed by nurse practitioners. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). If a nurse practitioner is competent to render a medical opinion, a generalist physician must logically also be competent, absent specific argument to the contrary. The Veteran then argues that the January 2018 VA opinion is inadequate, in reference to D’Aries v. Peake, that the VA standard is “an adequate medical opinion is one that provides sufficient detail to fully inform the Board on its medical question.” The Board here finds that between the January 2018 and July 2016 VA examinations and related medical opinions on the Veteran’s sleep apnea, the Board has sufficient detail to make an informed opinion. The July 2016 VA medical opinion was not inherently inadequate, but merely lacked an opinion on secondary service connection that was remedied by the January 2018 VA examination and opinion. The Veteran then objects to the adequacy of the VA examination and opinion from January 2018 for not taking the Veteran’s lay statements into account, referencing Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), and specifically noting the Veteran’s testimony at the hearing. The Board requested in its March 2017 remand that the next VA examiner opine on the contentions of the Veteran that sleep apnea is related to a service-connected disability. The VA examiner in January 2018 opined on whether the Veteran’s sleep apnea was caused or aggravated by her service-connected back disability or major depressive disorder. The Veteran’s lay statement on her August 2008 Form VA 9 was that she believed her back disability caused her sleep apnea. The January 2018 VA examiner opined on secondary service connection as to the back disability as well as the major depressive disorder. The Board notes that the Veteran’s June 2013 hearing testimony did not relate a contention that her service-connected back or depressive disorder was the cause of her sleep apnea, nevertheless, the examiner opined on the lay contentions. The Veteran also appears to argue that VA failed in its duty to assist by not sending a letter for mustard gas development information to the Veteran. However, the evidence of record shows that the AOJ mailed the Veteran a development letter requesting additional information on mustard gas exposure on September 18, 2017. The AOJ also requested information from the chemical exposure database and received a negative reply on January 12, 2018. Accordingly, the Board finds substantial compliance with the March 2017 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). The RO sent the case to the Muskogee AOJ for mustard gas development, mailed the Veteran a letter requesting additional information on mustard gas exposure, requested information from the appropriate authority’s database on chemical and biological exposure, uploaded the negative reply in the Veteran’s claim’s folder, and provided the Veteran with an additional medical opinion that is legally adequate. Turning to the Veteran’s underlying claim for entitlement to service connection for sleep apnea, the Board finds that the evidence of record does not support a grant of service connection. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303 (a). Lay evidence can be competent and sufficient to establish the elements of service connection when (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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. 38 C.F.R. § 3.159 (a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. 38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must assess the competence and credibility of lay statements. Barr, 21 Vet. App. at 308. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). Service connection may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it 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 disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established by the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Veteran contends that her sleep apnea developed in service, possibly due to exposure to mustard gas or Lewisite, or as secondary to her service-connected disabilities. The Veteran’s service treatment records (STRs) document a complaint of difficulty breathing in conjunction with a back pain claim in January 1975. The Veteran’s October 1972 medical examination did not note problems related to sleeping. The Veteran’s February 1975 medical examination did not note problems related to sleeping. The Veteran was diagnosed with sleep apnea in 2006. At the June 2013 Board hearing, the Veteran denied any complaints related to sleep apnea during active service. The Veteran testified that she recalled that within one year of leaving active service that she had snoring issues. The Veteran testified that she did not have complaints regarding snoring from others during active service who slept in the same quarters as she did. The Veteran testified that she was tired during training in the military. The Veteran also stated that she was exposed to chemicals during active service and that she developed sarcoidosis. The Veteran is not service-connected for sarcoidosis. The Veteran testified that around 2006, she had an incident where she fell asleep while traveling to Richmond and that she was diagnosed with sleep apnea in the same time period. The Veteran’s home aide also testified at the hearing that she has witnessed the Veteran’s symptoms of sleep apnea such as snoring and suspended breathing over the prior three and half years. In a July 2016 VA examination, the Veteran was confirmed to have a diagnosis of sleep apnea dated 2006. The examiner noted that the Veteran said she started developing daytime sleepiness and unrefreshed sleep around 2001 and that since being issued a CPAP, she feels well after sleeping. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by any event, injury, or exposure in service, to include mustard gas. The examiner reviewed the Veteran’s STRs and noted that the records did not document symptoms suggestive of sleep apnea in service. The examiner noted that the Veteran also suffered from asthma but stated that symptoms related to asthma cannot be “extrapolated” to sleep apnea based on singular statements and that asthma is a separate and unrelated condition. The examiner reported searching medical literature for information on a relationship between the development of sleep apnea and exposure to mustard gas, but did not find anything to support such a contention. The examiner also noted that since the Veteran was diagnosed over 30 years after separation from service, any previously existing condition much earlier in time would have been expected to show residual secondary effects such as right heart failure or pulmonary hypertension that the Veteran does not have. The examiner noted that the Veteran was obese, noting that is the greatest risk factor for developing sleep apnea. The Veteran was afforded a VA examination in January 2018. The examiner recorded that the Veteran reported developing sleep apnea during her time in active service at Fort Hood after being in the gas chamber. The examiner opined that the Veteran’s diagnosed sleep apnea was less likely than not related to her service-connected disabilities of low back disorder and major depressive disorder. The examiner stated that sleep apnea is “caused by central neurological lesions or upper airway disturbances… There is no medical association with back conditions.” The examiner explained that there are not current medical studies available supporting a cause and effect with sleep apnea and depression. The examiner also opined that the Veteran’s sleep apnea was not aggravated by the service-connected back disability or depressive disorder. The examiner stated that the sleep apnea is an upper airway disturbance and the upper airway is not affected by the back condition. The examiner also explained that major depressive disorder does not have a direct or indirect impact of the upper airway collapse that is the basis of sleep apnea, nor on the neurological center of the brain suppressing respiration. In reaching the above conclusion, the Board has not overlooked the Veteran’s own statements and those supporting her claims. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran testified that she was trained in the medic specialty in the service and her job was to perform EKGs. Thus, the Board finds more competency value in the Veteran’s lay statements as compared to someone not trained in any medical specialty. However, the Veteran’s own statements at other junctures note that she developed sleep apnea later in life, roughly the year 2001, and the other medical evidence of record does not support her contentions that she developed sleep apnea in or shortly after active service. The Board thus does not accord these conflicting statements probative value. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The July 2016 and January 2018 VA examinations are both credible and performed by a medical examiner competent to discuss the etiology of the Veteran’s sleep apnea. Once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The Board finds the VA examiners’ reports that the sleep apnea diagnosed in 2006 (over 30 years post active service) is at least as likely due to obesity and less than likely related to active service, and less likely than not caused or aggravated by service-connected disabilities are more probative than the Veteran’s submitted lay statements. The VA examiner was able to review the overall record, including the Veteran’s lay history and opinions. In summary, the weight of the evidence does not support a finding that the Veteran’s current obstructive sleep apnea is etiologically related to a disease, injury, or event in service, to include the Veteran’s service-connected back disability and depressive disorder. As a result, service connection is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as   here, the preponderance of the evidence is against the claim for obstructive sleep apnea. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel