Citation Nr: 1236895 Decision Date: 10/24/12 Archive Date: 11/05/12 DOCKET NO. 06-25 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for ulnar neuropathy of the right upper extremity (major extremity). 2. Entitlement to an initial rating in excess of 20 percent for ulnar neuropathy of the left upper extremity (minor extremity). 3. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty between October 1982 to January 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for ulnar neuropathy of the right upper extremity and ulnar neuropathy of the left upper extremity and assigned a 10 percent evaluation, effective February 1, 2005. In October 2009, the Board remanded both claims for additional evidentiary development. By a November 2010 decision, the Appeals Management Center (AMC) assigned a 30 percent evaluation for ulnar neuropathy of the right upper extremity and a 20 percent evaluation for ulnar neuropathy of the left upper extremity. Each evaluation was assigned an effective date of February 1, 2005. During the course of the appeal, the Veteran perfected an appeal of a denial of a claim of entitlement to service connection for obstructive sleep apnea which arose from an April 2008 rating decision. In May 2011, the Board remanded all three issues on appeal for additional evidentiary development. The claims have been returned to the Board for further appellate action. FINDINGS OF FACT 1. In September 2012, the Veteran withdrew his appeal of his claims for higher initial disability ratings for ulnar neuropathy of the right upper extremity and ulnar neuropathy of the left upper extremity. 2. Obstructive sleep apnea began during service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran concerning the claim of entitlement to a higher initial rating in excess of 30 percent for ulnar neuropathy of the right upper extremity have been met. 38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal by the Veteran concerning the claim of entitlement to a higher initial rating in excess of 20 percent for ulnar neuropathy of the left upper extremity have been met. 38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 3. Obstructive sleep apnea was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues In August 2006, the Veteran submitted a substantive appeal indicating that he wished to appeal, in pertinent part, the claims for initial increased ratings for neuropathy of the right and left upper extremities, listed in the July 2006 statement of the case. This perfected his appeal as to his claims for entitlement to initial increased ratings for neuropathy of the right upper extremity and ulnar neuropathy of the left upper extremity, each assigned a 10 percent evaluation. Per the Board's remand directives in October 2009, the Veteran underwent further VA examination of his service-connected neuropathy of the right upper extremity and neuropathy of the left upper extremity in March 2010. By a November 2010 decision, the AMC assigned a 30 percent evaluation for ulnar neuropathy of the right upper extremity and a 20 percent evaluation for ulnar neuropathy of the left upper extremity. Each evaluation was assigned an effective date of February 1, 2005. In May 2011, the Board once again remanded the issues for additional development. In a June 2011 VA examination report (conducted for evaluating the claim for service connection for obstructive sleep apnea), it was noted that the Veteran recently received a new rating for ulnar neuropathy and was satisfied with that rating. It was further noted that the Veteran did not wish to continue with the appeal claim for the neuropathy and that he declined any scheduling for an electromyography (EMG) study. Accordingly, in June 2011 letter, the AMC advised the Veteran and his representative to confirm any desire to withdraw the ulnar neuropathy claims. The letter further stated that if no response was given within 30 days, a decision would be made in this case. Upon the expiration of the stated 30 day time period and in the absence of any response from the Veteran or his representative, the RO considered the claims based on all the evidence of record. In an August 2012 statement of the case (SSOC), the AMC denied higher evaluations for ulnar neuropathy of the right upper extremity and ulnar neuropathy of the left upper extremity. However, in September 2012, the Board received a VA Form 9 from the Veteran in which he indicated that he read the statement of the case and any supplemental statement of the case and that he was only appealing the issue of entitlement to service connection for obstructive sleep apnea. In light of the statements recorded at the June 2011 VA examination along with the VA Form 9 received by the Veteran in September 2012, the Board finds that the claims for initial increased ratings for ulnar neuropathy of the right upper extremity and ulnar neuropathy of the left upper extremity have been effectively and properly withdrawn. While the June 2011 examination report generally indicated that the Veteran was satisfied with the neuropathy claim, the Veteran's latter communication with the Board (via the VA Form 9) confirmed that he did not seek to continue the appeal with respect to either neuropathy claim. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, there remain no allegations of errors of fact or law for appellate consideration and the Board does not have jurisdiction to review the appeal on the withdrawn claims. The claims must therefore be dismissed. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). As the Veteran's claim of entitlement to service connection for obstructive sleep apnea is granted in full herein, no further discussion of the duties to notify and assist is necessary with respect to this claim. Analysis - Obstructive Sleep Apnea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). The Board has reviewed all the evidence in the appellant's claims file. The Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran claims that sleep apnea was incurred in service. A private sleep studies report dated in October 2001 confirms a diagnosis of sleep apnea syndrome. In a November 2007 letter, A. Turkay, M.D., reported that the Veteran carried long-standing diagnoses of fibromyalgia (for which he is service-connected) and chronic fatigue syndrome and that it was possible that the obstructive sleep apnea may cause symptoms of fatigue and arthralgias reminiscent of fibromyalgia syndrome as well as chronic fatigue syndrome. In a November 2007 statement, the Veteran's wife of 20 years reported that she first noted that the Veteran was experiencing sleep difficulties between 1996-1997. She reported that since that time, his episodes of snoring, coughing and choking have increased in severity. In a May 2008 letter, G.B. Goodman, M.D., reported that he could not prove that the Veteran's sleep apnea is service-connected, but he could not exclude the possibility either and that it was certainly possible. In a March 2010 letter, P.W. Strum M.D., reported that a review of the records suggests that while the Veteran was recently diagnosed with sleep apnea, his symptoms extend back to his active military service. Dr. Strum reported that the Veteran's history suggests that he did not have these symptoms prior to his military service and have worsened since then. He stated that it is not unusual that this would become apparent well into the development of his symptoms, and only in retrospect, do problems that were previously ignored make sense. Dr. Strum felt that the Veteran had irregular sleep/wake cycles and abnormal work hours that could have contributed to his sleep disorder. He also indicated that the Veteran suffered a head injury in service which he stated is not uncommonly associated with sleep disorders. Dr. Strum concluded that the Veteran's combination of obstructive sleep apnea and his narcolepsy/narcolepsy-like symptoms disabled him to a certain degree and may at least as likely as not be related to and connected to his service in the Armed Forces. The Veteran was afforded a VA examination in June 2011 and the examiner confirmed a diagnosis of obstructive sleep apnea. In providing a nexus statement and rationale, the examiner essentially copied portions of Dr. Strum's March 2010 report but incorrectly reported that the Veteran's history suggests that he did have symptoms of sleep apnea prior to his military service. The examiner concluded that the Veteran's sleep apnea has not been aggravated by his military service beyond the normal progression of the disease. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In such an assessment of medical evidence, the Board can favor some medical evidence over other medical evidence so long as the Board adequately explains its reasons for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The United States Court of Appeals for Veterans Claims (Court) instructed that the Board should assess the probative value of medical opinion evidence by examining the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical opinion that the physician reaches. See Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The record includes the opinion provided by the June 2011 VA examiner who incorrectly transcribed a statement from Dr. Strum's report that the Veteran's history suggested that he did have symptoms of sleep apnea prior to his military service and then went on to conclude that the Veteran's sleep apnea has not been aggravated by his military service beyond the normal progression of the disease. However, the Board notes that the medical evidence in this case simply does not indicate that the Veteran's sleep apnea preexisted his active military service. Thus, the VA examiner's statement as to preexistence and aggravation of the Veteran's sleep apnea is not consistent with the evidence of record. The VA examiner also stated, however, that the Veteran's symptoms did extend back to his period of military service. Further, the Board turns to the favorable opinion provided by Dr. Strum. Initially, the Board notes that Dr. Strum's opinion is partially based on the Veteran's reports of sleep problems beginning in active service. In this case, the Board finds that there is no reason to question the credibility of the Veteran's statements noting sleep problems during his active service. Thus, the Board finds that Dr. Strum accurately reported the Veteran's medical history and also indicated that the Veteran's service records were reviewed. Based on certain conditions experienced during service such as irregular sleep/wake cycles and a head injury suffered in basic training, Dr. Strum found that the Veteran's obstructive sleep apnea was related to or present during service. The Board finds that this opinion, based upon a review of the facts and medical history, is the most probative opinion of record. As such, the Board finds that the evidence of record is in equipoise as to the issue on appeal. With resolution of doubt in the Veteran's favor, the Board finds that the evidence of record supports service connection for obstructive sleep apnea. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). ORDER The appeal of the claim of entitlement to an initial rating in excess of 30 percent for ulnar neuropathy of the right upper extremity (major extremity) is dismissed. The appeal of the claim of entitlement to an initial rating in excess of 20 percent for ulnar neuropathy of the left upper extremity (minor extremity) is dismissed. Service connection for obstructive sleep apnea is granted. ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs