Citation Nr: 0009126 Decision Date: 04/06/00 Archive Date: 04/12/00 DOCKET NO. 97-22 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for insomnia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The appellant had 20 years of active service and retired from the military in March 1996. This matter comes before the Board of Veterans Appeals (the Board) on appeal from a December 1996 rating decision issued by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In pertinent part, the RO denied service connection for bilateral hearing loss, tinnitus and insomnia. In a decision dated in May 1999, the Board granted service connection for right ear hearing loss and tinnitus, but denied service connection for left ear hearing loss. The Board also remanded the claim for service connection for insomnia for further development. In June 1999, the RO assigned a noncompensable disability evaluation for right ear hearing loss and a 10 percent evaluation for tinnitus. The Board notes that an award of service connection constitutes a full award of benefits and, due to the absence of a Notice of Disagreement regarding the initial disability rating, the issues of increased ratings are not currently on appeal. Holland v. Gober, 10 Vet.App. 433 (1997). See also Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The claim for service connection for insomnia, however, has been returned to the Board for further appellate review. FINDINGS OF FACT 1. There is no competent medical evidence of record that the appellant currently manifests an underlying or identifiable disability responsible for his complaint of insomnia. 2. The appellant's claim of entitlement to service connection for insomnia is not plausible. CONCLUSION OF LAW The claim for service connection for insomnia is not well grounded, and there is no further statutory duty to assist the appellant in the completion of his application. 38 U.S.C.A. §§ 5103(a), 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that he suffers from a chronic sleeping disorder, manifested by insomnia and/or sleep apnea, which was incurred or aggravated during service. In making a claim for service connection, he has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, he must present a claim which is not inherently implausible when his contentions and the evidence of record are viewed in the light most favorable to his claim. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well grounded claim for service connection requires evidence of 1) a current disability as provided by a medical diagnosis; 2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and 3) a nexus, or link, between the in- service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet.App. 465 (1994); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The first requirement for a well grounded claim is competent evidence that the appellant has the disability for which he is seeking benefits. Absent such a showing, there can be no valid claim. Brammer v. Derwinski, 3 Vet.App. 223 (1992). Generally, a lay person may present competent testimony concerning symptoms manifested in service and subsequent to service, but is not competent to speak to matters involving medical diagnosis or etiology. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). As such, bare allegations relating in- service symptoms to a claimed disability, in and of themselves, will not suffice to well ground a claim. Hicks v. West, 12 Vet.App. 86, 89 (1998) (lay assertions of chest pain are insufficient to establish the existence of a current heart condition); Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999) (lay assertions of neck pain are insufficient to establish the existence of a current neck disability). Service medical records do show the appellant's complaint of occasional trouble sleeping and loss of memory "when drunk" on a May 1982 physical examination. He specifically denied such complaint on subsequent examinations in 1983, 1987, and 1990. He also did not list this condition on dental health questionnaires dated in 1987, 1988 1989, 1990, 1991, 1993 and 1995. Furthermore, there are no complaints of sleeping difficulties noted in his treatment records which span his 20- year career in the military. However, he did voice complaint of frequent trouble sleeping on his August 1995 Ionizing Radiation Work examination. At this time, the examiner noted "freq. trouble sleeping - insomnia NCD (not considered disabling)," but offered no diagnosis concerning an underlying pathology for this complaint. Post- service, the appellant did not voice complaint of insomnia on his September 1996 VA general examination and, accordingly, no diagnosis was rendered. However, on his September 1996 audiology examination, he did complain that his now service- connected tinnitus kept him awake at night. The remainder of his post- service medical records, which consist of outpatient notes from the Noble Army Community Hospital, are negative for complaint, treatment or diagnosis of a chronic sleeping disorder. Upon review of the record, the Board finds no medical evidence of record showing treatment or diagnosis of sleep apnea. There are two isolated in- service complaints of sleeping difficulties in 1982 and 1995, but the silence of such complaint in his intervening service medical records fails to support a history of chronicity. There is an assessment of "freq. trouble sleeping - insomnia NCD (not considered disabling)" noted by an examiner in 1995. However, an assessment of insomnia alone, absent a diagnosed or identifiable underlying pathology or condition, is insufficient to constitute a disability for which service connection can be granted. See Sanchez-Benitez, 13 Vet.App. at 285. Even assuming, arguendo, that an assessment of "insomnia" is sufficient to support a finding of a current disability, such an assessment would not constitute 'competent medical evidence' as the record clearly shows that the examiner made his determination solely on lay history provided by the appellant. See Leshore v. Brown, 8 Vet.App. 406, 409 (1995). As indicated above, the appellant's claimed history of a chronic sleeping disorder is both unsupported and unsupportable. Post- service, the appellant's clinical records at best reveal a complaint of sleeping difficulties which he himself attributes to his tinnitus, but there is no medical evidence of record showing that the insomnia is due to an underlying disability or otherwise providing a medical nexus to service. Rather, the appellant's claim rises and falls on his own assertions that he manifests a chronic sleeping disorder manifested by insomnia and/or sleep apnea. Notwithstanding the fact that his own reported history in- service and post- service presents a rather contradictory picture of a chronic sleeping disorder, his lay statements, in and of themselves, are insufficient to establish a nexus between his in- service complaints of sleeping difficulties to a current diagnosis. Savage v. Gober, 10 Vet.App. 488, 197 (1997); Sanchez-Benitez v. West, 13 Vet.App. at 285. In the absence of a current diagnosis of an underlying pathology or condition responsible for complaint of insomnia, the appellant has failed to submit a valid claim. Brammer, 3 Vet.App. 223 (1992). As such, the Board must deny the claim for service connection for insomnia as not well grounded. See Edenfield v. Brown, 8 Vet.App. 384 (1996) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). The United States Court of Appeals for Veterans Claims has recently held that, absent the submission and establishment of a well grounded claim, VA cannot undertake to assist a claimant in developing facts pertinent to his/her claim. Morton v. West, 12 Vet.App. 477, 486 (1999). See Epps v. Gober, 126 F.3d 1464, 1467 (Fed.Cir. 1997), cert denied, ____ U.S. ____,118 S.Ct. 2348, 141 L.Ed.2d 718 (1998). However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application. See Graves v. Brown, 8 Vet.App. 522 (1996). Review of the claims folder on appeal clearly shows that the appellant has been notified of the type of evidence needed to complete his application with respect to his claim on appeal. In this respect, the appellant was first informed in a January 1997 Statement of the Case that the evidence of record did not demonstrate a "permanent residual or chronic disability." He was advised by letter dated in June 1999 to identify records of post- service treatment for his claimed sleep disorder, but he failed to respond. He was also offered VA examination to determine the nature and etiology of his claimed sleep disorder in September 1999, but he failed to appear. Notice was sent to his last known address of record, and there is no evidence that such notice was returned as undeliverable. His claim, accordingly, must be based upon the evidence of record. 38 C.F.R. § 3.655(b) (1999). The Board discerns no additional sources of relevant information which may be obtained concerning the present claim. Accordingly, the Board is satisfied that the obligation imposed by section 5103(a) has been met. See generally Wood v. Derwinski, 1 Vet.App. 190 (1991) (VA "duty" is just what it states, a duty to assist, not a duty to prove a claim). (CONTINUED ON NEXT PAGE) ORDER Service connection for insomnia is denied as not well grounded. NANCY I. PHILLIPS Member, Board of Veterans' Appeals