Citation Nr: 0810933 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 03-25 285A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a sleep disorder, including insomnia and sleep apnea, as a result of Agent Orange exposure. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from December 1966 to December 1968 and had service in Vietnam from March to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The case was previously before the Board in August 2005, when it was remanded for additional development. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. The veteran's current insomnia had its onset in service. 2. Sleep apnea was not manifest in service and is unrelated to service or Agent Orange exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for insomnia are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 2. The criteria for service connection for sleep apnea, including as a result of Agent Orange exposure, are not met. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist VA is required to notify the veteran and his or her representative, if any, of (1) the information and evidence that is necessary to substantiate the claim; (2) what evidence the veteran is responsible for providing; (3) what evidence VA will attempt to obtain; and (4) the need to submit any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2007); See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied through a May 2002 letter to the veteran that addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the veteran of the evidence required to substantiate the claim and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information, which would include that in his possession, to the AOJ. The veteran was notified of effective dates for ratings and degrees of disability in November 2006. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In this case, VA obtained service medical records, VA medical records, and private medical records. The veteran was affo4rded a VA examination in September 2006. VA has satisfied its assistance duties. Service connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.309(e), if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; Multiple myeloma; Non-Hodgkin's lymphoma; Acute and subacute peripheral neuropathy; Porphyria cutanea tarda; Prostate cancer; Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The veteran maintains that he has had trouble sleeping since active service. Service medical records show a history of trouble sleeping in July 1967. There was a complaint of insomnia for one month in July 1968. On service discharge examination in December 1968, the veteran denied having shortness of breath or frequent trouble sleeping. At that time, he was 5'7" tall, weighed 160 pounds, and had a medium build. It appears that the veteran had a private sleep study in about June 1987. He reported in May 2002 that the diagnosis was stress or something similar. The veteran had a CAT Scan of his brain for a sleep problem in February 1990 and was prescribed Prozac. Insomnia was diagnosed on VA evaluation in June 2002. An assessment of chronic insomnia was reported privately in September 2002. On VA evaluation in December 2002, the veteran reported that he had not been able to sleep properly since 1967. He would take 3 to 4 hours to go to sleep unless he took medicine, and once he would get to sleep, he would wake early, at 5 a.m. Also in December 2002, the veteran reported that he had been diagnosed with sleep apnea 15 years beforehand. Sleep apnea is documented in a September 2006 private study. On VA medical examination in September 2006, a history of a sleep apnea study in 1987 was reported. The veteran stated that the study had revealed mild sleep apnea. The examiner reviewed a January 2006 VA treatment record which indicated that the examiner in January 2006 felt that the veteran had developed symptoms of difficulty falling asleep, maintaining sleep, and unrefreshing sleep in the late 1960s after his service and had had symptoms ever since. The current VA examiner concluded from that statement that the January 2006 doctor had felt that the veteran had a sleep problem dating back to around the time of his military service. He noted that the only entry in the service medical records indicated an episode of insomnia in July 1968. He concluded that therefore it would appear that at least the veteran's disturbed sleep pattern, insomnia, dates back to 1968. At that time, the veteran was still on active duty, the examiner noted. The examiner noted that the veteran had had insomnia in service in July 1968, but found that the file lacked concrete evidence of sleep apnea over a number of years. He concluded that there was evidence of insomnia in service, but that there was no evidence that the veteran had sleep apnea during service. A VA psychiatrist in September 2006 indicated that the sleep problems the veteran had at least as likely as not had their onset in service or were related to in-service disease or injury. He further stated that the chronic sleep problem was part of PTSD which was caused by experiences the veteran had in the military in Vietnam. The VA general medical examiner in September 2006 concluded that the veteran's insomnia dated back to his active service. There is no competent medical evidence to the contrary. Accordingly, service connection for insomnia is warranted. However, the preponderance of the evidence is against entitlement to service connection for sleep apnea. Sleep apnea was first diagnosed many years after service. The VA general medical examiner in September 2006 reviewed the veteran's service medical records and other information in his claims folder and found that there was no evidence that the veteran had sleep apnea in service. Sleep apnea was not shown in service or for years after service, and no competent medical evidence relates it to service. The VA psychiatric examiner in September 2006 related sleep problems to service; however, she did not indicate whether the "chronic sleep problems" was insomnia or sleep apnea. On the other hand, the VA general medical examiner made a specific distinction between the two disorders and provided a detailed and well- reasoned opinion based upon review of the claims folder. Sleep apnea is not on the list of diseases presumptively service connected based on Agent Orange exposure, and no competent medical evidence shows that it was due to Agent Orange exposure. Accordingly, service connection for sleep apnea is not warranted. In sum, service connection for insomnia is granted, and the preponderance of the evidence is against entitlement to service connection for sleep apnea. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for insomnia is granted. Service connection for sleep apnea, including as a result of Agent Orange exposure, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs