Citation Nr: 1016260 Decision Date: 05/03/10 Archive Date: 05/13/10 DOCKET NO. 09-11 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for sleep apnea to include as secondary to the Veteran's service-connected major depression. ATTORNEY FOR THE BOARD K. Curameng, Associate Counsel INTRODUCTION The Veteran had reserve service in the Marine Corps from December 1986 to May 1987 and November 1990 to May 1991, with various periods of active duty for training (ACDUTRA). He had service in the Southwest Asia theater of operations from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Reno, Nevada. FINDING OF FACT Symptoms of sleep apnea were not manifested during the Veteran's active duty service or for many years thereafter, nor is sleep apnea otherwise related to such service or to the service-connected major depression. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by service, nor is sleep apnea proximately due to or the result of the Veteran's service-connected major depression. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, VA provided the Veteran pre-adjudication notice by a letter dated in October 2007. The RO provided the Veteran with additional notice in May 2009, subsequent to the initial adjudication. The notification identified the evidence necessary to substantiate a claim for service connection on a direct and secondary basis, and the relative duties of VA and the Veteran to obtain evidence. While the May 2009 notice was not provided prior to the initial adjudication, the Veteran has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a November 2009 supplemental statement of the case, following the provision of notice in May 2009. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA has obtained service treatment records, VA and private treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran a VA examination in March 2008 to determine service connection on a secondary basis. Although the Veteran was not provided a VA examination for an opinion on direct service connection, the evidence demonstrates no in-service injury, disease (including symptoms of sleep apnea), or event to which a current diagnosis of sleep apnea may be associated. For this reason, a VA examination and opinion is not necessary to decide this claim. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Service Connection for Sleep Apnea The issue before the Board involves a claim of entitlement to service connection for sleep apnea, to include as secondary to the service-connected major depression. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). The Board notes, however, that even though the Veteran is not seeking service connection on a direct basis, all theories of entitlement that are raised by the Veteran or by the evidence, including direct and secondary service connection, must be considered. See Hodge v. West, 155 F.3d 1356, 1362- 1363 (Fed. Cir. 1998) (noting that Congress expects VA "to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits"). After a review of all the evidence of record, the Board finds that service connection on a direct basis is not warranted. Service treatment records are silent for complaints, symptoms, treatment, or diagnosis of sleep apnea. On April 1987, January 1990, and March 1991 reports of medical examination, clinical evaluation of the Veteran's nose, sinus, mouth and throat were normal and there were no indications of sleep apnea. On April 1987 and January 1990 reports of medical history, the Veteran denied shortness of breath, frequent trouble sleeping, and any ear, nose, or throat trouble. On dental health questionnaires from 1987 to 1990, no sleep apnea was indicated. After service, on a November 1995 Persian Gulf registry health history form, the Veteran marked the appropriate line to indicate no shortness of breath. On a claim received in August 2007, the Veteran wrote that he was treated for sleep apnea from January 2007 to May 2007. While not determinative by itself, it is also significant that there is no evidence of sleep apnea for approximately 16 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In the aforementioned claim, the Veteran reported that sleep apnea secondary to major depression began in June 1991. A July 1997 VA treatment record shows that the Veteran slept poorly. However, the Veteran had submitted claims for other VA benefits based on other disabilities that were received in July 1998 and March 1999. It was not until August 2007 that the Veteran submitted a claim for sleep apnea. This suggests that the Veteran did not believe he had sleep apnea related to service and/or to his service-connected depression until many years after service. In sum, the weight of the evidence shows no continuity of sleep apnea symptoms since service, and do not show a nexus to service. In disability compensation (service connection) claims, 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 the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Simply stated, the standards of McLendon are not met in this case because the evidence of records fails to indicate that sleep apnea, first reported many years post service, had its onset in service or is otherwise related thereto. The Board also finds that service connection on a secondary basis is not warranted as well. In support of his claim, the Veteran submitted two medical opinions from Craig N. Bash, M.D. In a July 2007 report, Dr. Bash wrote that he reviewed medical records, the Veteran's 2007 lay statements, the recent rating decision, other medical opinions and medical literature. Dr. Bash remarked that some literature suggests a relationship between his depression and sleep disorder, while others do not. He stated that it is known that up to 20 percent of patients with depression also have a sleep disorder. It was his opinion that the literature was incomplete and that better studies need to be made. Nevertheless, he opined that the Veteran's depression is significantly exacerbating his sleep disorder because it is known that they have a 20 percent coexistence rate and because the record does not contain a more likely etiology for sleep disorder. Dr. Bash cited Depression and Obstructive Sleep Apnea by Schorder et al, from Annals of General Psychiatry 2005. The Board's review of the aforementioned article by Carmen M. Schröder does not support Dr. Bash's assertion. The article instead provides that treating physicians should be highly aware of a possibly underlying or coexisting obstructive sleep apnea in depressed patients; and that basic research should further investigate the causal relationship between depression and obstructive sleep apnea, as well as the potential mechanisms by which both disorders may interact. When the Veteran was afforded a VA examination in March 2008, the VA examiner reviewed the Veteran's entire claims file, and interviewed and examined the Veteran. The VA examiner wrote that Dr. Bash's opinion and the article that Dr. Bash referenced was very tenuous evidence that related depression as a cause for the Veteran's sleep apnea. Included in his report were three medical articles. The first was from the National Heart, Lung, and Blood Institute that indicted that sleep apnea is caused by the relaxation of the throat muscles and tongue, large tongue and tonsils that occlude the airway, overweight, shape of head and neck that may case a smaller airway in the mouth and throat, and the aging process. The second article was from WebMD in which the causes of sleep apnea were similar to the first article. The third article was a reprint from the Mayo Clinic. The VA examiner noted that the article confirmed that the cause of sleep apnea was multifactorial, and that the factors did not include depression. The March 2008 VA examiner noted that the Veteran had no history of asthma or pneumonia, and no question of asbestos exposure. He noted that the Veteran's left chest x-ray was normal and that a pulmonary function study had been done in preparation of the report. The VA examiner noted the Veteran's medical history that included stable weight. The March 2008 VA examiner diagnosed mild sleep apnea and major depressive disorder. The VA examiner opined that the Veteran's current sleep apnea is not caused by, or result of the depression. He explained that three reputable sources stated that depression is not a cause of sleep apnea. He noted that the article that Dr. Bash submitted did not clearly state that depression caused sleep apnea, but rather that depression is more common in those with sleep apnea. The VA examiner reported that those with sleep disorders are known to have increased incidence of depression. Thus, he said, one is not able to say that depression caused sleep apnea. The VA examiner wrote that, to the contrary, it is more likely that the sleep apnea aggravated the depression. He continued that depression and sleep apnea are very common in society, but he did not find any indication on review of literature, particularly the items that are attached that suggest depression is causative for sleep apnea. In response, the Veteran submitted a May 2008 opinion from Dr. Bash, who wrote that he reviewed service treatment records, post-service treatment records, imaging reports, the Veteran's April 2006 statements, other medical opinions, and medical literature. He wrote that he examined the Veteran in June 2008 and that the cause of the Veteran's sleep apnea was his weight gain and depression. In support of his opinion, he noted: (1) that the Veteran had no family history of sleep apnea, no head injury and no neck surgery; (2) that the Veteran had been on several different types of antidepressant medication, all of which were known to cause weight gain, which is was well known cause of sleep apnea; (3) that the Veteran does not have other risk factors for sleep apnea; and (4) that the record does not contain a more likely etiology for the Veteran's sleep apnea. Dr. Bash disagreed with the March 2008 VA examination, noting that the VA examiner: (1) did not find any literature that supported his opinion that depression does not cause sleep apnea; (2) did not examine the Veteran's throat and did not comment on the Veteran's relaxed throat muscles or excess weight; (3) did not comment on past depression medication use; (4) did not comment on literature directly relating antidepressant medication to weight gain; (5) did not comment on the relationship between serotonin and sleep apnea; and (6) did not comment on the Veteran's lack of comorbid risk factors such as diabetes, neck surgery, family history, cardiovascular problems, and hypertension. The Board finds that the March 2008 VA examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As to the weight of the VA examination report, the VA medical opinion is based upon consideration of the Veteran's prior medical history and examination. The VA examination describes the Veteran's disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. The VA examiner cited to three reputable sources, which Dr. Bash has not specifically addressed. Further, Dr. Bash has not provided or cited to any sources stating that depression caused sleep apnea. In fact, the article that Dr. Bash cited to suggested that basic research should further investigate the causal relationship between depression and obstructive sleep apnea, as well as the potential mechanisms by which both disorders may interact. Regarding the VA examiner's consideration of the Veteran's throat muscles, excessive weight, medication, and past medical history, the VA examiner indicated that he had reviewed the claims file, and interviewed and examined the Veteran. His findings included lists of medication, examination of the Veteran's throat, an observation of the Veteran's weight, and medical history. Included in his findings were the medical articles that explored the symptoms and causes of sleep apnea: throat muscles, excessive weight, medication, etc. The Board additionally notes that Dr. Bash did not report his findings when he had physically examined the Veteran. Therefore, the Board affords considerably more weight to the March 2008 VA opinion than to the statements contained in Dr. Bash's opinion. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the VA examiner's opinion was based partially on physical examination of the Veteran, whereas Dr. Bash's July 2007 opinion relied on correspondence from the Veteran and a review of medical literature and treatment records (which were not specified). To the extent that Dr. Bash purported to have conducted and examination, he did not report such findings, and the opinion does not indicate that any such examination findings served as the basis for his opinion. The evidence calls into question whether Dr. Bash actually examined the Veteran because, in his May 2008 opinion, Dr. Bash wrote that he examined the Veteran in June 2008. Further, in the July 2007 report, Dr. Bash noted that he had reviewed other medical opinions. However, at the time he proffered his opinion, there were no other medical opinions of record. Unlike the VA medical examiner's opinion which discussed all of the medical articles in the claims file, both July 2007 and May 2008 opinions from Dr. Bash did not discuss all the medical articles. While Dr. Bash wrote in his May 2008 opinion that he had examined the Veteran, there was no indication that he administered diagnostic tests on the Veteran as the VA examiner had done. For the reasons set forth above, the Board finds that the opinion rendered in the March 2008 VA examination report is more probative than Dr. Bash's opinions. The Board acknowledges the Veteran's assertion that his sleep apnea is related to his service-connected depression. In adjudicating a claim, the Board must assess the competence and credibility of lay statements of the Veteran. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reaffirmed that VA must consider the competency of lay evidence in order to determine if it is sufficient to establish a nexus. The Veteran is competent to report the types of symptoms he has experienced and the continuity of such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, he is not competent to testify as to the etiology of his sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303 (2007). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea, both as directly incurred in service and as secondary to service-connected depression, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for sleep apnea, to include as secondary to the Veteran's service-connected major depression, is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs