Citation Nr: 1749097	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  11-17 971	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for obstructive sleep apnea.


REPRESENTATION

Appellant represented by:	Ronald C. Sykstus, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

R. Casadei, Counsel 


INTRODUCTION

The Veteran served on active duty from July 1966 to June 1968.

This matter comes before the Board of Veterans' Appeals (Board) from a March November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

In November 2013, a videoconference hearing was held before a Veterans Law Judge other than the undersigned; a transcript of the hearing is associated with his claims folder.  After VA offered the Veteran an additional hearing, in July 2015, the Veteran indicated in a statement that he did not desire to have another hearing before the Veterans Law Judge who would decide his appeal.

By way of procedural background, in June 2014, the Board promulgated a decision, denying the Veteran service connection for a sleep disability, to include sleep apnea, as well as other claims.  The Veteran appealed the Board's decision in part, that is, only as to the denial of service connection for a sleep disability, to the United States Court of Appeals for Veterans Claims (Court).  In June 2015, the parties filed a Joint Motion for Partial Remand to vacate the Board's decision insofar as the sleep disability claim was concerned, and remand the case to the Board.  The Court in a June 2015 Order granted the Joint Motion, and remanded the matter to the Board for readjudication consistent with the terms of the Joint Motion.  The Court also dismissed the other claims decided by the Board in June 2014.  In November 2015, the Board remanded the issue of service connection for sleep apnea for further development.  The claim was re-certified to the Board in October 2017.  As such, it is properly before the Board for adjudication. 

Other Procedural Issues

In June 2014, the Board also remanded the claim for service connection for a cardiac disorder, to include ischemic heart disease.  The Agency of Original Jurisdiction (AOJ) just recently issued a Supplemental Statement of the Case (SSOC) on October 16, 2017.  The SSOC indicated that the Veteran had 30 days from the date of the SSOC within which he could submit additional information or evidence.  Following the expiration of the 30-day period (or waiver of the 30-day period by the Veteran), the claim will be re-certified to the Board.  Accordingly, the issue for service connection for a cardiac disorder, to include ischemic heart disease, is not properly before the Board at this time.

Further, the Board notes that the issue of entitlement to an increased rating in excess of 30 percent for residuals of a total left knee replacement has also been appealed to the Board.  In a March 2016 statement, the Veteran's representative requested a Board videoconference hearing in connection with this claim.  As a hearing has not yet been scheduled, the Board will not address this issue at this time.  

The issue of whether new and material evidence has been received to reopen the claim for service connection for hypertension has been raised by the record in a May 2016 statement, but has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).


FINDING OF FACT

Sleep apnea did not have its onset in service, is not otherwise related to active military service, and is not etiologically related to a service-connected disability.


CONCLUSIONS OF LAW

The criteria for service connection for obstructive sleep apnea have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113(b), 1116, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

VA has met its duty to notify and assist the Veteran in this case.  In a pre-adjudication letter dated in October 2011, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for a sleep disability on both a direct and secondary basis.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 
(2002).

Regarding the duty to assist, VA obtained the Veteran's service treatment records, pertinent service personnel records, Social Security Administration (SSA) disability records, and all of the identified post-service VA treatment records and private medical records that are relevant to the claims of service connection for a sleep disability.  

In the June 2015 Joint Motion, the parties agreed that the Board erred by determining that the VA had obtained all private medical records relevant to the claim, when two documents in the record indicate that there are outstanding private medical records that have yet to be associated with the file.  Those records consisted of an October 2011 record request to the Sleep Disorder Center of Alabama, which contained a handwritten note stating that the Veteran's hospital held his records/charts, and a November 2013 Board hearing transcript, which showed that the Veteran's attorney referenced missing records for 2005 from Decatur General Hospital.  It was not clear from the claims file whether the outstanding medical records referenced in the foregoing documents were one and the same.
Pursuant to the Board's December 2015 remand, the AOJ was instructed to ask the Veteran to furnish medical records, relating to his treatment for a sleep disability by private health care providers, cited in an October 2011 record request to the Sleep Disorder Center of Alabama (which contained a handwritten note stating that the Veteran's hospital held his records/charts) and in the 2013 Board hearing transcript (which shows that the Veteran's attorney noted that there were missing records for 2005 from Decatur General Hospital).  Alternatively, the AOJ was asked to provide the Veteran with medical releases, authorizing VA to obtain such records on his behalf.

Thereafter, in a March 2016 statement, the Veteran's representative indicated that the Veteran has completed authorization forms for the Sleep Disorder Center of Alabama.  Additionally, the representative noted that the Veteran had not been treated for sleep apnea at Decatur General Hospital, but instead, had received treatment from the Birmingham VA Medical Center (VAMC).

The Board notes that VA treatment records from the Birmingham VAMC have been obtained and are associated with the claims file.  Further, treatment records from the Sleep Disorder Center of Alabama were received in January 2016.  An additional request for treatment records to the Sleep Disorder Center of Alabama was made by VA in March 2016; however, no additional records (in addition to those received in January 2016) have been received.  

In addition, the Veteran was afforded a VA examination pertaining to his sleep apnea in July 2017.  As set forth in greater detail below, the Board finds that the VA examination obtained in this case is adequate as it is predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; and included a medical opinion supported by a rationale. 

Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of service connection for sleep apnea on appeal has been met.  38 C.F.R. § 3.159 (c)(4).  For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran.  See 
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

    Service Connection Laws and Regulations

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.A. 
§ 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).  Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b).  Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.


Service Connection Analysis for Sleep Apnea
    
The Veteran contends that his sleep apnea is related to herbicide agent exposure in service.  In the alternative, he claims that the sleep disorder is related to his service-connected diabetes mellitus.

The evidence includes an October 2010 VA sleep education assessment note which includes a diagnosis of obstructive sleep apnea.  Thus, a current disabily has been demonstrated.

As the Veteran served in Vietnam during the Vietnam Era, he is presumed to have been exposed to herbicide agens, including Agent Orange.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307.  However, sleep apnea is not a condition listed in 38 C.F.R. § 3.309 (e).  Hence, presumptive service connection on the basis of his presumed exposure to herbicides is, therefore, not warranted.  38 C.F.R. § 3.309 (e); see also 68 Fed. Reg. 27,630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted).

Next, there is no evidence of any complaints of or treatment for sleep problems in the Veteran's service treatment records and his June 1968 separation examination was normal other than for poor dental hygiene. 

The objective evidence otherwise indicates that the Veteran's current sleep disability did not manifest until many years after service.  The earliest post-service report of a possible sleep disability is reflected in an October 2011 statement from the Veteran's wife (VA Form 21-4138) in which she reported that ever since she and the Veteran were married in December 1999, she noticed that his breathing was irregular and that he subsequently sought treatment for his "sleeping habits."  The earliest post-service clinical evidence of sleep problems is a January 2007 VA examination report which indicates that the Veteran reported impaired sleep, nightmares, and night sweats.  There is no lay or clinical evidence of any earlier sleep problems following service. 
The absence of any clinical or lay evidence of sleep problems for over three decades after the Veteran's separation from service in June 1968 weighs against a finding that his current sleep disability was present in service or in the year or years immediately after service.

The Veteran was recently afforded a VA examination in July 2017.  During the evaluation, the examiner indicated that the Veteran had obstructive sleep apnea, first diagnosed in November 2010.  The examiner then opined that the Veteran's sleep apnea was not related to service as the service separation examination report was negative for any symptoms or diagnosis for sleep apnea.  Additionally, the examiner indicated that the Veteran was diagnosed with sleep apnea 42 years following service separation.  

The Veteran has expressed his belief that his current sleep disability is related to herbicide agent exposure in service and/or his service-connected diabetes mellitus.  However, as a lay person, he can only comment as to symptoms and immediately-observable relationships.  He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current sleep disability is related to any specific injury in service (including herbicide exposure) or were caused or aggravated by his service-connected diabetes, as opposed to some other cause.  Rather, it would require medical expertise to evaluate the disorder, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence.  38 C.F.R. § 3.159 (a)(1), (2) (2017).

The Board acknowledges that the July 2017 VA examiner did not specifically address whether the Veteran's sleep apnea was secondary to his service-connected diabetes disability.  VA must provide a medical examination when there is: 
(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006).

Here, the Board finds that the evidence of secondary causation or aggravation does not rise to the level that would warrant a medical opinion.  The Veteran has partially contended that his sleep disorder is directly related to service.  The July 2017 VA medical opinion addresses direct service connection.  The remaining evidence of record does not indicate a relationship between the Veteran's claimed sleep disorder and his service-connected diabetes mellitus.  As noted above, the Veteran's lay opinion regarding secondary service connection is not competent evidence.  As such, the evidence of record does meet even the low threshold of McLendon which refers to evidence that a current disability may be related to a service-connected disability.  Accordingly, the Board finds that referral for a VA medical opinion is not warranted as it pertains to secondary service connection.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt doctrine is therefore not helpful in this case and the claim of service connection for sleep apnea must be denied.  See 
38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.


ORDER

Service connection for obstructive sleep apnea is denied.




______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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