Citation Nr: 0819280 Decision Date: 06/11/08 Archive Date: 06/18/08 DOCKET NO. 06-12 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from April 1977 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefit sought on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran is not currently diagnosed as having sleep apnea attributable to his active service. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated in November 2005, VA notified the veteran of the information and evidence needed to substantiate and complete his claim for service connection, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in March 2006. As such, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial, November 2005 VCAA notice was given prior to the appealed AOJ decision, dated January 2006. The notice in compliance with Dingess, however, was untimely. The Court specifically stated in Pelegrini, however, that it was not requiring the voiding or nullification of any AOJ action or decision if adequate notice was not given prior to the appealed decision, only finding that appellants are entitled to VCAA-content-complying notice. Thus, the timing of the notice in this matter does not nullify the rating action upon which this appeal is based. Because proper notice was provided in March 2006 and a Supplemental Statement of the Case was issued subsequent to that notice in February 2007, the Board finds that notice is pre-decisional as per Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence, affording him a physical examination, obtaining medical opinions as to the etiology of his disability, and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board, even though he declined to do so. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran seeks service connection for sleep apnea. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 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). The veteran's service medical records (SMRs), including his enlistment and separation medical examinations, are devoid of any reference to a sleep disorder, including, sleep apnea. The veteran was diagnosed as having chronic rhinitis, reactive airway disease, hypertension and asthma while in service. The SMRs also reflect multiple treatments related to allergies. In a January 1984 occupational health examination, the veteran indicated that he did not experience trouble breathing when sleeping, nor had he awakened or had trouble catching his breath while sleeping. In September 1997, the veteran underwent a VA general medical examination. The veteran did not assert that he experienced any difficulties breathing while he slept, nor was there any indication that the veteran had a sleep disorder at that time. In a February 1999 VA treatment record, the veteran indicated that he slept comfortably, flat, and with one pillow. The veteran denied shortness of breath or orthopnea. In a September 2004 VA treatment note, the veteran's wife reported to him that while sleeping, his breathing ceased for short periods of time. The veteran advised that he would wake up tired. A sleep study was recommended as the treating personnel could not rule out sleep apnea. In September 2005, the veteran underwent a sleep study due to complaints of excessive daytime drowsiness. Noted were the veteran's snoring episodes and "suspected events of apnea." The veteran was found to have symptoms consistent with obstructive sleep apnea, which had been improved with use of the CPAP machine. He was also noted to have intermittent obstructive airway disease causing his snoring respirations. A November 2005 letter regarding the veteran's treatment indicated that the veteran currently used a CPAP machine to relieve his symptoms believed to be caused by sleep apnea. The physician indicated that the veteran's sleep apnea caused or worsened his hypertension. He referenced recent medical studies which showed a connection between obstructive sleep apnea and hypertension. The physician included a printout listing the potential medical conditions associated with sleep apnea. There was no reference made to the veteran in this treatise evidence, nor did the physician indicate that the veteran's hypertension caused the sleep apnea. The veteran submitted treatise evidence in the form of online articles related to sleep apnea. The articles indicated the risk factors and symptoms associated with sleep apnea. Noted was the increased likelihood that one with sleep apnea would subsequently experience hypertension, pulmonary hypertension, abnormal heart rate, heart failure, CAD or stroke. In this article, there was no reference made to the veteran. In an April 2006 VA treatment record, the veteran was noted to have obstructive sleep apnea and was using a CPAP machine for his symptoms. Upon physical examination, he was noted to have evidence of allergic rhinitis. The physician's assistant (PA) indicated that VA overlooked the veteran's asthma diagnosis in its disability determination. The PA further indicated that the veteran's "severe snoring for years, was not recognized while he was on active duty as having sleep apnea, due to insuficent [sic] medical knowledge, as sleep apnea understanding & treatment was still much in its infancy, even in the 1990's." The PA also advised that while he was a medical officer in the Air Force, he saw this same issue in a number of cases in the 1980s and 1990s. In his April 2006 substantive appeal, the veteran asserted that his sleep apnea was originally diagnosed as allergic rhinitis and reactive airway disease while in service. He contends that he experienced symptoms associated with sleep apnea since service and that because no one knew much about sleep apnea during his time in service, it was improperly diagnosed as allergic rhinitis and reactive airway disease. The veteran further noted that hypertension could be severely worsened by sleep apnea. In July 2006, the veteran underwent a VA examination for respiratory conditions. He was noted to have been diagnosed as having reactive airway disease in service and a history of allergies and asthma flare-ups. The veteran reported his sleep apnea diagnosis and use of a CPAP machine to relieve his symptoms. The veteran reported occasional wheezing and chest tightness, but did not experience shortness of breath. The veteran reported one incident of shortness of breath and that he nearly blacked out from the incident. The examiner diagnosed the veteran as having reactive airway disease and asthma-with acute episodes every two to three months. The veteran's chest x-ray and pulmonary function tests were noted to be within normal limits. No further mention was made regarding the veteran's sleep apnea. In a March 2007 statement, the veteran indicated that his symptoms related to sleep apnea began in service. He stated that his condition did not have a name or label during the time period he was in service. In May 2007, the veteran underwent a VA examination for his claimed sleep apnea. The veteran was noted to have been diagnosed as having sleep apnea in September 2005 and began using a CPAP machine for treatment since October 2005. His symptoms, which were relieved by use of the CPAP machine, included snoring and morning headaches. The veteran advised that since he began using the CPAP machine, he was able to get a good night's sleep and awaken without morning headaches. The veteran reported shortness of breath with moderate exertion and he was noted to have hyperreactive airway disease with exercise triggering his asthma symptoms. The veteran reported no acute episodes of asthma attacks or ER visits in the year prior to the examination. Upon review of the veteran's claims file, the examiner indicated that the veteran did not have complaints of excessive snoring, morning headaches, daytime sleepiness or other symptoms associated with sleep apnea while in service or for many years following service. The examiner opined that because the veteran had no reported symptoms associated with sleep apnea while in service, it was less likely than not that the veteran's currently diagnosed sleep apnea had its onset in service. The examiner further noted that the veteran was treated for lung problems while in service-specifically, hyperreactive airway disease, the symptoms of which, were not present in the same way as they would be with obstructive sleep apnea. The examiner's rationale also included the fact that the veteran had no complaints of snoring or breathing problems while sleeping until September 2004. Given the evidence as outlined above, the Board finds that the veteran is not entitled to service connection for sleep apnea. The Board appreciates the veteran's assertions that his sleep apnea was misdiagnosed in service as allergic rhinitis and reactive airway disease. The veteran is competent, as a layman, to report that as to which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). He is not, however, competent to offer his medical opinion as to cause or etiology of the claimed disability, as there is no evidence of record that the veteran has specialized medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opinion on matter requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, although the veteran suggests that his sleep apnea was improperly diagnosed as allergic rhinitis while in service, he was noted to have allergic rhinitis as well as sleep apnea in his April 2006 VA treatment note. Additionally, the submitted treatise evidence in the form of online articles related to sleep apnea was reviewed. These articles indicate an association between sleep apnea and other conditions, including, hypertension. The articles, do not, however, state that hypertension causes sleep apnea, nor has the veteran contended that his sleep apnea was caused by his service-connected hypertension. Further, there is nothing to suggest that the veteran participated in any study associated with findings listed in these articles. The statement submitted by the treating PA reflected that the veteran experienced severe snoring for years and was not properly diagnosed as having sleep apnea while in service. He further noted that sleep apnea studies were in their infancy during the veteran's time in service and he had seen similar cases while he was a medical officer. The Board appreciates the PA's assertions that he had similar cases in service, but there is no evidence of record to suggest that the veteran was a patient of the PA while they were in service. Additionally, the PA's statements regarding the veteran's alleged in-service history of severe snoring contradict the evidence of record. There is no evidence that the veteran complained of severe snoring while in service, or for many years thereafter. In fact, the first evidence of record suggesting a problem with snoring was in September 2004. Although hinted at by the PA, there is no evidence of record linking the veteran's in-service diagnosis of asthma to his currently diagnosed sleep apnea. The PA's assertions lack in their probativeness as they directly contradict the evidence of record. The examiner at the May 2007 VA examination indicated that it was less likely than not that the veteran's currently diagnosed sleep apnea had its onset in service. He reasoned that the veteran had no complaints of symptoms associated with sleep apnea in service or for many years thereafter, and that the veteran's symptoms associated with his diagnosed reactive airway disease did not manifest in the same fashion as with sleep apnea. The examiner based his rationale upon a thorough review of the veteran's claims file as well as his physical examination of this veteran. This examiner's opinion is of high probative value. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence). Consequently, the Board finds that the preponderance of the evidence is against the veteran's claim of service connection for sleep apnea, and his claim is denied. ORDER Service connection for sleep apnea is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs