Citation Nr: 1808579 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-20 463 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher Gannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1988 to January 1992. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2010 rating decision in which the RO, inter alia, denied his claim for service connection for obstructive sleep apnea. In November 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2012 and the Veteran subsequently filed a substantive appeal via a VA Form 9 in July 2012. Jurisdiction over this matter was transferred to the RO in Detroit, Michigan after the issuance of the November 2010 rating decision. In June 2015, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been attached to the claims file. In August 2015, the Board dismissed a withdrawn claim for service connection for which an appeal had also been perfected. At the same time, the Board remanded the claim for service connection for sleep apnea to the R,O via the Appeals Management Center (AMC) in Washington, D.C. for further action. The AMC subsequently denied that claim in an October 2015 Supplemental Statement of the Case (SSOC) reflecting the continued denial of the claim, and returned the matter to the Board for further consideration. In June 2016, the remaining claim on appeal (service connection for obstructive sleep apnea) was again remanded for further consideration. An additional VA examination was provided in March, 2017. In July 2017, the Appeals Resource Center (ARC) issued a SSOC reflecting the continued denial of the claim, and returned the matter to the Board for consideration. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager claims processing systems. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. While the Veteran has a current diagnosis of obstructive sleep apnea, such disability is not shown by competent, credible and probative evidence to have had its onset during service, or for many years thereafter; and the only competent, probative medical opinion evidence to address the relationship, if any, between sleep apnea and either service or service-connected PTSD weighs against the claim. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 ((2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 ((2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g. Pelegrini v. Principi, 18 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the RO provided notice to the Veteran in a pre-rating July 2010 letter explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by him, and what information and evidence would be obtained by VA. The letter also provided the information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The November 2010 rating decision reflects the initial adjudication of the claim for service connection after issuance of this letter. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment and personnel records, VA treatment records, and several reports of a VA examinations, to include with medical opinions addressing the etiology of the Veteran's s obstructive sleep apnea.. Also of record and considered in connection with the appeal is the transcript of the June 2016 Board hearing, along with various written statements provided by the Veteran , his representative, and others on his behalf. The Board finds that no additional AOJ action to further develop the record in connection with the matter herein decided, prior to appellate consideration, is required. As for the June 2015 Board hearing, during the hearing, the undersigned VLJ identified the issues on appeal and information was elicited regarding the onset and diagnosis of, and treatment for, his obstructive sleep apnea. Although the undersigned did not explicitly suggest the submission of any specific, additional evidence, on these facts, such omission was harmless. Following the hearing, the claim was remanded for development on two occasions, as a result of which additional evidence was ultimately added to the claims file Thus, the hearing was legally sufficient. See 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board is also satisfied that the AOJ has complied with its prior remand directives, to the extent possible, such that no further action in this regard is required. 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) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance is required). The primary purposes of the prior remands were to obtain any outstanding, pertinent medical records and adequate etiology opinions. In particular, the primary purpose of the June 2016 remand has been achieved, and, as discuss below, adequate medical opinion evidence to resolve rhe claim has been obtained. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claim that has not been obtained. In summary, the duties imposed by the VCAA have been considered and satisfied.. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. As such, the Veteran is not prejudiced by the Board proceeding to a decision on the claim on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection for Obstructive Sleep Apnea Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.304. In. 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) (2016). Generally, in order to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are 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). Under 38 U.S.C. § 1117 (a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317 (a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 77 Fed. Reg. 63225 (2012). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 (a), (b). The Board notes that Congress revised 38 U.S.C.A. § 1117, effective March 1, 2002. In the revised statute, the term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317(a)(2). Under 38 C.F.R. § 3.310 (a), service connection also may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2015). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744 - 47 (Sept. 7, 2006). 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. § 5107 ; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Pertinent evidence includes service treatment records, VA medical records, the results of VA-ordered examinations (to include as reflected in Disability Benefits Questionnaire (DBQ) reports) a supplemental opinion based on claims file review, private medical statements and articles , and statements by the Veteran and by other laypersons on his behalf, Service treatment records reflect that, in a report of medical history completed in October 1987, the Veteran denied frequent trouble sleeping. In the same document, his lungs were described as s normal. A May 1991 report of medical history completed in conjunction with a redeployment medical examination indicates that the Veteran denied frequent trouble sleeping. In July 1991, he presented with a shortness of breath. A cardiac examination was conducted and stress tests were administered. In October 1991, the Veteran reported headaches and night-waking, as well as pain in his nasal cavity. In November 1991, the Veteran reported dizziness, diarrhea, and vomiting. He was diagnosed with a viral infection. Post service, a June 2009 VA treatment record reflects that the Veteran was referred for a sleep study. In March 2010, the Veteran was diagnosed with obstructive sleep apnea. In September 2010, a VA examiner, Dr. K.Y. opined that the Veteran's sleep apnea was not caused or aggravated by his service-connected PTSD. The opinion was unaccompanied by a rationale; the physician simply stated that it was based on a review of medical literature. In November 2011, Dr. E.M. of the VA Medical Center in Ann Arbor, Michigan provided a medical opinion. He wrote, "I have been treating him for PTSD and depression since October of 2009. Mr. [REDACTED] has multiple sleep problems w[h]ich have exacerbated his psychiatric symptoms. He has nightmares, insomnia, and broken sleep that are related to his PTSD as well as sleep apnea which first became apparent while he was in the military." The opinion was not accompanied by a rationale for why the physician believed there was a medical nexus. Accordingly, following the June 2015 hearing, the Board remanded the claim, directing the AOJ to obtain an addendum opinion from the same physician who provided the September 2010 negative nexus opinion. The order called for the AOJ to render an opinion as to whether the Veteran's current sleep apnea at least as likely as not (1) had its onset during or was otherwise medically-related to an in-service injury or disease, specifically including his in-service sleep difficulties and feelings of fatigue, or (2) whether the Veteran's sleep apnea was otherwise aggravated by the Veteran's service-connected PTSD. The examiner was directed to consider all relevant in-service and post-service medical evidence, specifically including Dr. E.M.'s opinion and any lay assertions regarding in-service sleep difficulties and fatigue, and to provide clearly-stated rationale. The same physician who provided the September 2010 opinion, Dr. K.Y., provided the addendum opinion ordered in the August 2015 remand. In the September 2015 report, the examiner gave the opinion that it was less likely than not that the Veteran's obstructive sleep apnea was incurred or caused by service. The examiner provided a rationale, stating that their opinion was based on the fact that the Veteran's STRs and post-service records within the presumptive period are silent for symptoms or diagnoses of obstructive sleep apnea. The examiner also did not address Dr. E.M.'s positive nexus opinion, as called for in the 2015 remand order. The September 2015 report also contained an opinion regarding service connection of obstructive sleep apnea secondary to PTSD. The examiner opined that it was less likely than not proximately due to or the result of the Veteran's PTSD. The examiner provided a rationale, citing medical literature listing common risk factors associated with sleep apnea, as well as medical literature stating that sleep apnea is not caused by PTSD. No analysis specific to this Veteran was provided with regard to these risk factors or for why this Veteran's PTSD did not cause his sleep apnea. Additionally, the examiner failed to note that the Veteran did complain of sleep difficulties in service, as evidenced by the November 1991 STR noting a report of night-walking. In light of these deficiencies, the Board again remanded rhe claim in June 2016. In the remand, the AOJ was ordered to obtain another addendum opinion that complied with the 2015 remand order. The AOJ was specifically ordered to have a physician render an opinion as to whether the Veteran's obstructive sleep apnea at least as likely as not had its onset during or is otherwise medically-related to an in-service injury or disease, specifically addressing the Veteran's reported night-walking in November 1991 and any other in-service sleep difficulties, or if the Veteran's obstructive sleep apnea is caused or aggravated by his service-connected PTSD. The AOJ was once again ordered to provide a rationale for all of these opinions. Finally, the AOJ was ordered to consider Dr. E.M.'s November 2011 nexus opinion, as well as a medical article submitted to the Board in a May 2016 informal hearing presentation which stated that there was a link between PTSD and sleep apnea. Pursuant to the 2016 remand, in March 2017, Dr. K.M. issued another medical opinion essentially reiterating the original opinion. In this opinion, the physician still did not provide a rationale for her opinion that there is no nexus between the Veteran's PTSD and his current diagnosis of obstructive sleep apnea, nor did Dr. K.M. provide an analysis of Dr. E.M.'s assessment as to nexus, as directed by both the 2015 and 2016 remand orders. Accordingly, the AOJ thereafter procured an additional opinion from a VA physician, who conducted a review of the Veteran's claims file, and issued a supplementary opinion in July 2017. In that opinion, the physician opined that it is less likely than not that the claimed obstructive sleep apnea, to include as secondary to service-connected PTSD is related to military service. Likewise, the physician opined that it is less likely than not that the Veteran's claimed sleep disorder was caused or is aggravated (worsened beyond the natural progression) by the Veteran's service-connected PTSD. In support, the physician provided a detailed rationale. The examiner cited to internal medicine and hypopnea literature linking obstructive sleep apnea to various factors such as excessive visceral fat, metabolic dysfunction, and mechanical airway dysfunction. These factors, the physician r opined, lead to pauses in breathing during sleep. The physician considered the Veteran's reports of sleeplessness while in service and found that although the Veteran complained of night-walking or sleepless nights while in service, "a comprehensive review of the active duty and presumptive period medical and clinical evidence clearly and unmistakable lacked sufficient objective hypopnea-based, clinical evidence to support a diagnosis, treatment, injury and/or event related to obstructive sleep apnea." The examiner's review of the Veteran's STRs did not reveal any evidence of complaints, diagnoses, treatments, injuries, or events related to an etiology of obstructive sleep apnea. With regard to the article submitted by the Veteran's representative in an informal hearing presentation, the physician offered that, "The military medicine, mental health, hypopnea and medical literature lack supportive medically-based, clinical evidence to support a nexus between obstructive sleep apnea, to include as hypopnea, and PTSD." As such, the physician opined that it is less likely than not that the Veteran's claimed sleep disorder was caused or is aggravated by his service-connected PTSD. The physician also considered the November 2011 medical opinion from Dr. E.M. and found that it lacked any objective hypopnea-based clinical evidence to support symptomatology and pathophysiologic characteristic related to and necessary for the clinical diagnosis of sleep apnea and/or active duty clinical presentation related to obstructive sleep apnea. In sum, the examiner found that Dr. E.M.'s opinion was merely speculative, and therefore opined that it was less likely than not that the Veteran's claimed obstructive sleep apnea had an onset during service or was otherwise related to an in-service injury or disease, to specifically include the Veteran's documented sleep difficulties in service. Considering the pertinent evidence of record in light of the governing legal authority, the Board finds that neither direct nor secondary service connection or obstructive sleep apnea is warranted. While it is clear that the Veteran currently suffers from a current disability (diagnosed obstructive sleep apnea), that disability is not shown to be medically related to his military service or to his service-connected PTSD. At the outset, the Board acknowledges that the hat at the Veteran is a Persian Gulf veteran within the meaning of the applicable statute and regulation. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a), (b). However, those provisions are not beneficial to him, as obstructive sleep apnea is a specific diagnosed entity (and therefore not a manifestation of undiagnosed illness), and is not among the identified chronic disabilities associated with Persian Gulf War service, to include on a presumptive basis. .As such, 38 C.F.R. § 3.317 does not apply, and direct and secondary service connection analyses are warranted. However, the record fails to establish by competent, credible, and probative evidence that this Veteran's obstructive sleep apnea had its onset in service, or is otherwise medically-related to service , or that the disability was caused or aggravated by his service-connected PTSD. Rather, in this case, the competent, probative evidence on these points weighs against the claim. As noted, while the service treatment records document a complaint of night-waking, and the Veteran has asserted experiencing similar symptoms, such as sleeplessness, in and after service, sleep apnea was not diagnosed in service, or for several years thereafter. Moreover, the majority of the medical etiology opinions are adverse to the claim. The Board notes, in particular, that he July 2017 reviewing VA physician provided negative etiology opinions both with respect to the relationship between the Veteran's sleep apnea and his service, and between sleep apnea and the Veteran's service-connected PTSD. The opinions were clearly based on full consideration of the claims file, to include the Veteran's documented history and assertions, the medical articles (which are not specific to this Veteran) and the opinion submitted by the Veteran; and other pertinent medical literature Furthermore, both opinions are consistent with other evidence of record, and are supported by complete, clearly-stated rationale. As such, the Board accepts these opinions as probative of the medical etiology questions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board notes the existence of a competing nexus opinion from Dr. E.M. in November 2011, which is conclusory in nature and does not provide a rationale. The Board finds that while this physician is competent to provide an etiology opinion, since it lacks a coherent rationale and appears to resort to mere speculation, the recent VA etiology opinions should be accorded more probative weight. Id. In addition to the medical evidence of record the Board has considered the lay assertions of record; however, such assertions do not provide persuasive support for the claim. The Veteran has asserted that has experienced symptoms, such as sleeplessness, during and since service and he has provided supporting lay assertions in this regard. The Board acknowledges that laypersons are competent to assert matters within their personal knowledge, to include symptoms observed or experienced. See, e.g., Charles v. Principi, 16 Vet. App. 370 (2002)_. However, symptoms, alone, without underlying pathology, are not sufficient to establish a disability for which service connection can be awarded. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Notably, the 2017 VA opinion provider considered the lay assertions in this regard, but still rendered medical nexus opinions that weigh against both direct and secondary service connection. Furthermore, to the extent that such lay assertions are offered in an attempt to attribute symptoms experienced during and after service, service to later diagnosed sleep apnea, or to otherwise assert the existence of a medical nexus between sleep apnea and service, such attempt must fail. The matters of diagnosis and etiology here at issue are ones within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). While it is error to categorically reject layperson evidence as to diagnosis or etiology as incompetent, the Board may consider the facts of a particular case to determine the layperson's competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). Here, however, the matters of the diagnosis and medical etiology of obstructive sleep appeal complex medical matter, the resolution of which requires education, training and expertise-and, thus, are outside the realm of knowledge of a layperson. Id. As neither the Veteran nor any of the lay affiants are shown to have such education, training and expertise, none is competent to opine on the complex medical matters upon which this claim turns. Hence, any lay assertions in this regard have no probative value. For all of the foregoing reasons, the Board finds that the claim for service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs