Citation Nr: 1749095	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  07-06 707	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Rippel, Counsel


INTRODUCTION

The Veteran had active service from February 1980 to February 1983 and from February 2003 to April 2004.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In the November 2005 rating decision, the RO, in pertinent part, denied service connection for Lyme disease and sleep apnea.  The Veteran appealed that decision.  In connection with that appeal, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in June 2008.  In an August 2008 decision, the Board denied a claim stylized as entitlement to service connection for Lyme disease and dismissed without prejudice a claim for service connection for sleep apnea.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court").  In January 2011, the Court issued a memorandum decision that determined that the Veteran's claim for service connection for Lyme disease encompassed symptoms not considered in the Board's August 2008 decision.  Therefore, that issue was remanded for consideration of a broader scope of claim.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Additionally, the Court reversed the Board's determination that the Veteran withdrew his claim for service connection for sleep apnea, and remanded that claim for review on the merits.  In December 2011, the Board remanded both issues for additional development.

In January 2017, the RO granted service connection for vector borne disease, also claimed as Lyme disease, fibromyalgia, chronic fatigue syndrome, and chronic joint pain.  This represents a complete grant of the Veteran's appeal in regard to this claim.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  Therefore, this issue is no longer before the Board. 

In April 2017, the Board remanded the claim of service connection for sleep apnea to the RO in order to afford the Veteran the opportunity for another Board hearing, as the VLJ who had conducted the prior hearing was no longer with the Board, and the Veteran desired an additional hearing.  A Board hearing was held via videoconference before the undersigned in July 2017.  The Board finds the directives have been substantially complied with, and the matter again is before the Board.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

Parenthetically, the Board notes that the April 2017 Board decision also remanded a claim of entitlement to a rating in excess of 10 percent for IBS for issuance of a new SSOC.  In a June 2017 rating decision, the RO increased the rating for IBS to 30 percent effective from May 19, 2017.  As it appears that the RO may still be taking action on this IBS claim, and the Veteran specifically clarified at the July 2017 hearing, with the guidance of his representative, that the only issue currently on appeal is the sleep apnea claim, the Board will not take jurisdiction of the IBS claim at this time.  


FINDINGS OF FACT

1.  The Veteran's sleep apnea is not related to his period of active service from February 1980 to February 1983. 

2.  The Veteran's sleep apnea pre-existed his period of active service from February 2003 to April 2004 and did not increase in disability due to disease or injury during this or any additional period of active service; no increase beyond the natural progress of the sleep apnea was shown.


CONCLUSION OF LAW

Sleep apnea was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  The Veteran has not identified any shortcomings in fulfilling VA's duty to notify and assist.  

      A.  Duty to Notify

In September 2005 and March 2008 letters, the RO notified him of the evidence needed to substantiate claims for service connection, delineated the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  

      B.  Duty to Assist 

The RO assisted the claimant in the procurement of relevant records, associating the Veteran's lay statements, post-service VA treatment records, and identified private treatment records with the claims file.  Service treatment records as well as service personnel records have been obtained.  All required efforts to obtain the Veteran's service records have been made.  Records were specifically requested from Fort Polk, where it is alleged that the Veteran was treated for an illness including sleep issues in June 2002.  An official response indicates that there are no records of treatment for the Veteran, and the Veteran has not provided any records of such treatment.  His service dates have been verified through the service department.  The Veteran has identified no additional relevant records.  

In April 2016, the Veteran underwent VA examinations for assessment of whether current sleep apnea that is related to service.  The examination report is based on consideration of the Veteran's prior medical history, examinations and treatment, testimony and lay contentions, and also describes the findings in sufficient detail.  

During the Board hearing, the undersigned Veterans Law Judge (VLJ) clarified that the issue on appeal was service connection for sleep apnea, identified potential evidentiary deficits, and clarified the type of evidence that would support the appellant's claim.  The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing.  See 38 C.F.R. § 3.103.

II.  Service Connection

	A.  Law

Generally, to establish service connection a Veteran must show: "(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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition 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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

With respect to periods of ACDUTRA service, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA.  Smith, 24 Vet. App. at 47.  In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone.  Id.  

With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA.  Smith, 24 Vet. App. at 48. 

The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA.  Smith, 24 Vet. App. at 45.  The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 also do not apply to ACDUTRA or INACDUTRA service.  Id.  See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA.  Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203, limiting the type of evidence accepted to verify service dates.

A service department finding that an injury occurred in the line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA.  38 C.F.R. § 3.1 (m); see Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

	B.  Analysis and Discussion

The Veteran has current sleep apnea which he urges was either incurred in or aggravated by his period of service from February 2003 through April 2004.  He testified before the undersigned that he did not have sleep apnea symptoms until shortly before his period of service beginning February 2003, when he was beginning to be re-activated for service in 2002.  See hearing transcript page 3.  He indicated that being activated and deactivated in October, November and December 2002 contributed to the condition.  He asserts OSA was made worse during the time he was on active service beginning in February 2003.  See Veteran's timeline statement dated in July 2017 and testimony, generally.  Consistent with this assertion, all of the lay statements reflect that perceived symptoms of sleep apnea were not shown until sometime in 2002, well after the initial period of service ending in 1983.  Indeed, there are no findings noted that are consistent with sleep apnea until 2002.  Therefore, the Board finds that the Veteran's sleep apnea did not have its onset during the Veteran's period of service from February 1980 to February 1983.

The Board also notes that sleep apnea is not a chronic disease listed at 38 C.F.R. § 3.309(a) and thus is not subject to presumptive service connection.  

It is uncontroverted in the record that sleep apnea was definitively diagnosed based on a sleep study performed in early February 2003, immediately prior to the Veteran's period of active service which began in February 2003.  Prior to that date, he had been worked up for this condition, but a definitive diagnosis had not been established.  In December 2002, the Veteran underwent a sleep lab evaluation for possible snoring and excessive daytime sleepiness which had been present "for the past several years."  See Eastern Pennsylvania Comprehensive Sleep Disorder Center (EPCSDC) letter dated January 17, 2003.  This laboratory study failed to show sleep apnea, but the examiners felt that the Veteran's history was "strongly suggestive" of a sleep disorder which could be an apnea primarily hypopneic in origin.

A progress note from E.K., M.D., dated January 14, 2003, provided assessments of sleep disorder not otherwise specified (NOS), musculoskeletal pain and anxiety.  A January 14, 2003, letter from this physician, penned for the purpose of describing the Veteran's medical problems before his active duty recall, described the Veteran as manifesting "fibromyalgia-like trigger points in the paraspinal area as well as severe sleep problems."

On February 6, 2003, the Veteran underwent an additional sleep study at EPCSDC which was interpreted as showing "Severe Obstructive Sleep Apnea." (emphasis original).  A February 14, 2003 sleep study follow-up report described the Veteran as manifesting severe sleep apnea with a respiratory disturbance index (RDI) of 56 per hour and overall apnea index of 21 per hour.  A continuous positive airway pressure (CPAP) machine was recommended.

The Veteran entered active duty service on February 16, 2003, without being given a formal entrance examination.  As such, the presumption of the Veteran being in sound condition upon service entry does not apply.  38 U.S.C.A. § 1111.  See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (holding that the provisions of 38 U.S.C.A. § 1111 do not apply when a claimant is not "examined, accepted, and enrolled for service" and further noting that, in the absence of an entrance examination, "there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based.")

On March 7, 2003, the Veteran underwent a pulmonary consultation with complaint of extreme fatigue with difficulty in functioning.  He was given an impression of severe obstructive sleep apnea based upon review of the February 6, 2003, EPCSDC sleep study, and prescribed a CPAP trial.  He was reported as nondeployable.

On March 27, 2003, the Veteran was referred for a MEB proceeding.  An April 11, 2003, MEB report reflected the Veteran's history that he "always had" daytime fatigue, muscle cramps and soreness as well as difficulty falling asleep and staying asleep.  He further reported having "fibromyalgia-like" symptoms, otherwise described as ongoing pain and stiffness of the muscles, which he claimed had no impact on his physical training or work.  For example, the Veteran reported being able to "max" the physical fitness test.  The Veteran specifically reported "no change in his symptoms in the past six months."  The MEB offered a diagnosis of sleep apnea which existed prior to service, and was not permanently aggravated by service.

Thereafter, the Veteran underwent continuous treatment for sleep apnea.  Notably, the Veteran reported the onset of sleep problems in approximately 1995-96.  See service treatment record (STR) dated July 2, 2003.  His former spouse reported no knowledge of the Veteran having a sleep problem prior to 1995, when they separated.  See STR dated June 3, 2010.  The Veteran also reported symptoms of anxiety and sleeplessness which he attributed to work stresses.  See STR dated July 4, 2003.

On a March 2004 Report of Medical History, the Veteran described the onset of insomnia in March 2003 which was not improved with CPAP use.

A March 12, 2004, Physical Evaluation Board (PEB) proceeding provided a diagnosis of sleep apnea unresponsive to CPAP, and associated insomnia.  It was held that the condition existed prior to service with "no evidence of permanent service aggravation." 

A June 2004 opinion from M.A.C, D.O., attributed the Veteran's multiple problems "both musculoskeletally, internal medicine and depression" to his "long involvement in the Army Reserves."

A January 2006 opinion from S.S.F., M.D., stated that the Veteran suffered from sleep apnea prior to his entry into active service in February 2003, but that it was as likely as not aggravated during this period of active service as it "has been well shown that stress and poor sleep can all contribute to worsening of sleep apnea."  Thus, the examiner stated that "within a reasonable degree of medical certainty" the Veteran's "obstructive sleep apnea and secondary insomnia was steadily aggravated by his time in military service."  Dr. S.S.F., provided a similar opinion in May 2009.

An August 2006 VA Compensation and Pension examination report and addendum based on a review of a later performed sleep study interpreted as not demonstrating substantial sleep apnea, reflects the VA examiner's opinion that the Veteran did not have sleep apnea.

A July 2007 statement from Dr. H.G. stated that the Veteran had a multitude of chronic symptoms, such as pain and stiffness in multiple joint sites, sinus congestion, insomnia, fatigue, poor exercise, endurance, diarrhea and flatulence, which had been present for several years without a sudden or precipitating event.  These symptoms were resistant to treatment, and the examiner had not found a satisfactory cause.

A September 2011 opinion from A.A., M.D., states that the Veteran was diagnosed with sleep apnea during service which progressively worsened during his period of active service from February 2003 to April 2004.  This examiner also attributed the Veteran's symptoms of chronic fatigue to his sleep apnea disorder.

The Veteran submitted several lay witness statements in June 2008 asserting that the Veteran's claimed disorder was caused and/or aggravated by a period of active duty for training (ACDUTRA) service in June 2002.  These statements refer to the Veteran as being removed from the field and being admitted to a "Post" medical facility.  However, as noted above, a thorough search has yielded no treatment records from Fort Polk, the base where the incident reportedly occurred.  

A BVA-ordered VA examination was conducted in May 2016 by a VA physician who reviewed the record and interviewed the Veteran.  A detailed history was taken by the examiner and is reflected in the report.  The examiner was asked whether the Veteran's obstructive sleep apnea (OSA), diagnosed by sleep study on February 6, 2003, just prior to second period of active duty, was permanently aggravated beyond the normal progression of the disorder as a result of active service from February 2003 to April 2004.  The response was that the OSA, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness.  The physician's explanation was as follows:

The rationale for this opinion is that, although the veteran's sleep apnea may have been diagnosed on February 6, 2003, just prior to second period of active duty, the veteran's sleep apnea has likely been developing since the onset of the veteran's insomnia in 2002; and the Veteran's obstructive sleep apnea does not appear to have been permanently aggravated beyond the normal progression of the disorder as a result of active service from February 2003 to April 2004, as the veteran's sleep apnea does not appear to have accelerated in its worsening since the veteran's active service from February 2003 to April 2004. 

The examiner further stated that the condition was not at least as likely as not related to service because the symptoms developed around 2002, while the Veteran was not in the military.

For the same basic reasons as outlined above, the examiner found it less likely as not that OSA first manifested during a period of ACDUTRA service in June 2002 and/or active service from February 2003 to April 2004 or, alternatively, was caused or aggravated beyond the normal progress of the disorder during a period of ACDUTRA service in June 2002 and/or active service from February 2003 to April 2004.  It was noted that the Veteran developed the sleep apnea symptoms around 2002, with gradual worsening over subsequent months.  

The examiner stated the following:

To the minimal extent that the veteran's symptom of insomnia is not attributable to obstructive sleep apnea, it is not as least as likely as not that the disorder of obstructive sleep apnea first manifested during a period of ACDUTRA service in June 2002 and/or active service from February 2003 to April 2004 or, alternatively, caused or aggravated beyond the normal progress of the disorder during a period of ACDUTRA service in June 2002 and/or active service from February 2003 to April 2004. 

The rationale for this opinion is that the veteran's obstructive sleep apnea first manifested before a period of ACDUTRA service in June 2002, and before active service from February 2003 to April 2004. Furthermore, the Veteran's obstructive sleep apnea does not appear to have been permanently aggravated beyond the normal progression of the disorder as a result of active service from February 2003 to April 2004, as the veteran's sleep apnea does not appear to have accelerated in its worsening since the veteran's active service from February 2003 to April 2004.  

As to whether sleep apnea was aggravated by service, the April 2016 medical opinion is persuasive evidence against this proposition.  The 2016 medical opinion, which considered the other medical opinion evidence of record and accepted the Veteran's assertions as to the circumstances surrounding the initial diagnosis in 2003 and complaints in 2002, is wholly against the claim.  

The Board finds the 2016 opinion to be more probative than the earlier opinions provided by non-VA providers, as it is more thorough and well-supported with references to the actual record, is definitive rather than equivocal, and considered the opposing opinions.  Thus, the weight of the probative medical evidence is against the theory that the pre-existing OSA was aggravated by service.  

Although the Board notes the lay statements and testimony indicating the Veteran's sleep apnea began around February 2003 and worsened during service beginning in February 2003, the weight of the competent evidence compels the conclusion that there was no increase in the severity of pre-existing sleep apnea during such period of service.  As this evidence is more credible than the lay assertions, it is of more probative value.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  The Veteran's lay theories are of significantly less probative weight when compared with the objective record, and the findings by the neutral 2016 VA examiner.  In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for the Veteran's theory, preponderates against the claim.  See Gilbert, supra.

Moreover, to the extent that the Veteran argues that he had temporary flare-ups of the sleep apnea during the periods of active service, such temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened.  Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)).  Here, it is established that the preexisting sleep apnea did not worsen as opposed to the Veteran exhibiting symptoms of such disability.  The VA examiner in 2016 clearly and unmistakably establishes the pre-existing apnea was not aggravated during service.

Also, the Board acknowledges the testimony and statements of the Veteran, and his buddies who have submitted statements in support of his claim.  While laypersons are competent to report a contemporaneous medical diagnosis and in certain instances opine as to etiology, the general statements that the Veteran's sleep apnea increased in severity in service (as opposed to intermittent flare-ups of symptomatology) does not outweigh the above evidence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011).  The lay statements do not have any significant probative value as to this point, and, as noted, are outweighed by the VA physician's expert opinion.  

The above discussion reflects that there was no increase in severity of sleep apnea during the Veteran's period of active service beginning in February 2003.  

In sum, the preponderance of the evidence is against a link between OSA and service.  Furthermore, the preponderance of the evidence is against a finding of an increase in disability (aggravation) of pre-existing OSA due to service.  For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for sleep apnea.  The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

Service connection for sleep apnea is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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