Citation Nr: 18143959 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 10-11 874 DATE: October 23, 2018 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to a rating in excess of 20 percent for Hepatitis C is remanded. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a sleep apnea disability that is etiologically related to a disease, injury, or event which occurred in service, or is caused or permanently aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for a sleep apnea disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to February 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2007 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were remanded by the Board in February 2012 and May 2014. In April 2011, the Veteran testified before a Veterans’ Law Judge (VLJ) during a Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims file. While this VLJ is no longer at the Board, the Veteran has stated that he does not want an additional hearing. 1. Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is denied. VA’s Duties to Notify and Assist The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). See February 2006 VCAA letter complies with the requirements. The Board also concludes VA’s duty to assist has been satisfied. The Veteran’s service treatment records (STR) and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to decide on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Veteran was provided a VA examination during the appeal, as explained below. The examiner considered the Veteran’s reported history, his current symptoms, and review of the available private and VA treatment records. The Board finds the examination report to be thorough and complete and sufficient upon which to base a decision with regards to this claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria for Service Connection Pertinent VA law and regulations provide that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Generally, this requires (1) the existence of a present 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); 38 C.F.R. § 3.303(d). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran’s discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran’s period of service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Also pertinently, service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be more persuasive or unpersuasive, and providing reasons 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); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). Facts and Analysis Having carefully reviewed the record, the Board has determined that service connection is not warranted for a sleep apnea disability. Although the evidence reveals that the Veteran currently suffers from sleep apnea, the competent, probative evidence of record does not etiologically link this condition to his service or service-connected PTSD. The Veteran contends that his present sleep apnea is caused by his service-connected PTSD. The Veteran’s STRs contain no indication of sleep apnea. The Veteran’s diagnosis of sleep apnea was made decades after service, in 2005, as reflected by VA treatment records. The Veteran appeared for a VA examination in May 2015, in which sleep apnea (OSA) was diagnosed. The examiner stated that the sleep apnea is less likely than not proximately due to or the result of the Veteran's PTSD. The examiner explained there is no causal association between PTSD and OSA. The examiner stated that OSA is caused by collapse of the oropharyngeal tissue; PTSD has no effect on the oropharyngeal tissue. The examiner stated that the sleep apnea is not at least as likely as not aggravated beyond its natural progression by PTSD, because while PTSD might impair treatment for Veteran's OSA, for example he cannot tolerate the CPAP due to claustrophobia, night sweats, and nightmares, it does not cause progression of obstructive sleep apnea beyond its natural progression. As this opinion was rendered upon examination of the Veteran, review of the claims file, and with thorough rationale based on medical expertise, the Board gives it significant probative weight. The sole evidence of record in support of the Veteran’s sleep apnea claim is lay evidence. Lay statements without competent evidence are insufficient in this case to establish the positive nexus required for service connection. The Board notes that the Veteran himself is not competent to establish a connection between his sleep apnea and his service. The Veteran has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses and opinions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. There is no competent medical evidence of record establishing any link between the Veteran’s sleep apnea and his service or service-connected disabilities. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for Hepatitis C is remanded. 2. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. 3. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. The Veteran last appeared for VA examinations for his Hepatitis C and peripheral neuropathy in May 2015. By September 2018 Appellate Brief, the Veteran indicated that he suffers flare-ups of his service-connected disabilities. He indicated that his disabilities have worsened due to the flares. While the Veteran appeared to focus on his peripheral nerve disabilities, giving the Veteran the benefit of the doubt and taking his statements of worsening generally, the Board finds his statement to include his Hepatitis C. The Court has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). As well, VA’s duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Here, a VA examination is required for the Veteran’s Hepatitis C and peripheral nerve disabilities of the bilateral, lower extremities, to determine their present severity and consider flare-ups. The matters are REMANDED for the following action: 1. Obtain all outstanding VA clinical records and give the Veteran the opportunity to identify any private treatment records for association with the claims file. All records/responses received must be associated with the claims file. 2. Schedule the Veteran for an examination of the current severity of his Hepatitis C. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Hepatitis C alone and discuss the effect of the Veteran’s Hepatitis C on any occupational functioning and activities of daily living. If speculation is required in the examiner’s opinion, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination of the current severity of his peripheral neuropathy of the bilateral, lower extremities. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the peripheral neuropathy of the bilateral, lower extremities alone and discuss the effect of the Veteran’s peripheral neuropathy of the bilateral, lower extremities on any occupational functioning and activities of daily living. If speculation is required in the examiner’s opinion, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   4. After the above is complete, readjudicate the Veteran’s claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev