Citation Nr: 1313714 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 03-29 186A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for depression, to include as secondary to service-connected hypertension. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to November 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2002 and November 2004 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The July 2002 rating decision denied service connection for major depressive. The November 2004 rating decision denied service connection for sleep apnea. In June 2003, the Veteran testified before a Decision Review Officer at the RO. In December 2006, the Veteran testified at a Travel Board Hearing. The Board recognizes that this hearing transcript has numerous inaudible portions. In an August 2007 written brief presentation, the Veteran's representative at that time acknowledged that many of the remarks made at the hearing were inaudible. However, the Veteran indicated that he did not wish to have another hearing. The case was previously before the Board in October 2007, at which time the issues were remanded for additional development. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. The issue of entitlement to service connection for depression, to include as secondary to service-connected hypertension, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, sleep apnea is shown to be etiologically related to active service. CONCLUSION OF LAW Sleep apnea was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision below, the Board has granted the Veteran's claim for service connection for sleep apnea, and therefore the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the requirements of the VCAA have been met in this case, no harm or prejudice to the Veteran has resulted. See Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 121-22 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Service Connection for Sleep Apnea Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. 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). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran's service treatment records do not show any complaints or diagnosis of sleep apnea. However, the Veteran does not assert that he was treated for sleep apnea in service or that he clinically complained of sleep apnea in service, but rather that it first manifested in service. In the alternative, the Veteran alleges that sleep apnea is secondary to his service-connected hypertension. A June 2003 private sleep study shows a diagnosis of severe obstructive sleep apnea. VA treatment records show that the Veteran was seen by a pulmonary/sleep disorder specialist in April 2004 and that the VA physician confirmed the diagnosis of sleep apnea. The VA physician noted that the Veteran served in the military from 1986 to 1994. He stated that during this time, the Veteran noticed increased tiredness, daytime and morning headaches and snoring which the examiner stated are early signs of sleep apnea which apparently were not investigated at that time. The examiner further stated that the Veteran's hypertension which needed multiple medications is related to untreated sleep apnea. At a VA examination to evaluate sleep apnea in October 2004, the Veteran reported that he had been diagnosed with sleep apnea following a sleep study one year earlier. The examiner noted that there was no record of history of sleep apnea, although there were frequent complaints of headaches, which were sometimes associated with high blood pressure. The Veteran denied treatment for complaints of excess fatigue, snoring or somnolence, but was told that this was a normal side effect of military training. The impression was sleep apnea and hypertension. The examiner opined that he was unable to assess whether the Veteran had sleep apnea in the service, but that if he did have his reported symptoms of excess fatigue, somnolence, and snoring in service, then it was likely that he did have sleep apnea. The examiner added that hypertension does not cause sleep apnea, but sleep apnea could cause hypertension. He concluded by stating that he did not feel that hypertension caused sleep apnea, but he was unable to say with certainty whether or not the Veteran had sleep apnea in the military. In a November 2005 VA pulmonary follow up report, the Veteran reported that neither he nor his colleagues were aware of problems attributed to fragmented sleep during service. With increased education and awareness, he now knows that his sleep problems have been in existence since he was in service. The Veteran underwent further VA examination in June 2011 to evaluate his sleep apnea. The examiner stated that the service treatment records were reviewed and they do not include any entries of reporting hypersomnolence or symptoms suggestive of the presence of obstructive sleep apnea. The examiner reported that hypertension is not a cause of obstructive sleep apnea and that there is no evidence of sleep apnea symptoms during the Veteran's military service. The examiner explained that obstructive apnea becomes more common as one ages and is more common among the overweight, but generally there is not one specific etiology noted. Initially, the Board notes that the evidence does not establish service connection for sleep apnea on a secondary basis but that ultimately this is inconsequential since the claim is being granted instead on a direct-incurrence basis. In this case, the June 2011 VA examiner failed to provide a nexus statement but emphasized the absence of documentation of symptoms suggestive of sleep apnea during the Veteran's period of active service. However, the Veteran has offered competent lay evidence of observable symptomatology during service, such as fatigue, headaches and snoring, that has continued over the years. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007). The Veteran's statements have been consistent and the Board has no reason to doubt the veracity of his statements. Moreover, a VA physician in April 2004 determined that the Veteran's described symptoms during service are consistent with symptoms of sleep apnea. The October 2004 VA examiner also noted that the Veteran's symptoms in service are consistent with sleep apnea. In sum, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's sleep apnea is etiologically related to active service. Resolving any benefit of the doubt in favor of the Veteran, the Board finds that service connection is warranted for the Veteran's sleep apnea. 38 U.S.C.A. § 5107(b). ORDER Service connection for sleep apnea is granted, subject to the legal criteria governing the payment of monetary benefits. REMAND The Veteran claims that he has depression that is related to service, to include as secondary to service-connected hypertension. In October 2007, the Board remanded the claim for further VA examination. Pursuant to the Board's remand directive, the Veteran was provided with a VA examination in June 2011. Unfortunately, the report from that examination does not adequately address all of the questions currently at issue. In pertinent part, the examiner recorded a diagnosis of major depressive disorder and determined that the disorder was not aggravated by service. However, in providing a rationale for the opinion, the examiner simply noted that the Veteran indicated that his depression started prior to his military service. The opinion rendered by the examiner is vague and insufficient for determining whether the Veteran's diagnosed depression pre-existed service and was further aggravated during service. The examiner also determined that the Veteran's depressive disorder was not aggravated by his service-connected hypertension. No rationale was provided and no reference was made as to any specific clinical findings as to why the Veteran's major depressive disorder is not aggravated by his hypertension. In light of the above, it is the Board's determination that the June 2011 VA examination report is insufficient upon which to base an appellate decision and that further VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA medical examination performed by a psychiatrist to determine the etiology of major depressive disorder. The claims folder should be made available to the examiner for review prior to the examination and the examiner is requested to acknowledge such review in the examination report. The examiner should provide an opinion as to whether major depressive disorder is at least as likely as not (a 50 percent probability or more) incurred in, or aggravated by service or is related to or aggravated by the Veteran's service-connected hypertension, to include side effects of medications used to treat hypertension. The examiner should offer a rationale for all opinions. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs