Citation Nr: 0813693 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-11 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for temporomandibular joint (TMJ) dysfunction. 2. Entitlement to an initial rating greater than 10 percent for sleep disturbance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from October 2000 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted, in pertinent part, the veteran's claim of service connection for sleep disturbance, assigning a 10 percent rating effective November 11, 2003, and denied the veteran's claim of service connection for temporomandibular joint (TMJ) dysfunction. This decision was issued to the veteran and his service representative in September 2004. The veteran disagreed with this decision in October 2004. He perfected a timely appeal in April 2005. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's currently diagnosed TMJ dysfunction is not related to service. 3. The veteran's sleep disturbance is not manifested by at least 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months. CONCLUSIONS OF LAW 1. TMJ dysfunction was not incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). 2. The criteria for an initial rating greater than 10 percent for sleep disturbance have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.27, 4.120, 4.124a, Diagnostic Code (DC) 8199-8108 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The veteran's higher initial rating claim for sleep disturbance is a "downstream" element of the RO's grant of service connection for sleep disturbance in the currently appealed rating decision issued in August 2004. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). In a letter issued in May 2004, VA notified the veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his disability during service, and noted other types of evidence the veteran could submit in support of his claim. In addition, the veteran was informed of when and where to send the evidence. VA also provided the veteran with additional VCAA notice, including notice of the Dingess requirements, in March 2006 and in May 2007. Although complete content-complying VCAA notice was not provided before the August 2004 rating decision, the claimant has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the August 2004 rating decision was fully favorable to the veteran on the issue of service connection for sleep disturbance, and because the veteran's higher initial rating claim for sleep disturbance is being denied in this decision, the Board finds no prejudice to the veteran in proceeding with the present decision and any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, the United States Court of Appeals for Veterans Claims (Veterans Court) held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The Board notes that the Veterans Court, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), clarified VA's notice obligations in increased rating claims. The appeal for a higher initial rating for sleep disturbance originates, however, from the grant of service connection for sleep disturbance. Consequently, Vazquez-Flores is inapplicable. With respect to the veteran's service connection claim for TMJ dysfunction, the Board observes that VCAA notice was provided to the veteran and his service representative in May 2004. This letter notified the veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). It informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his TMJ dysfunction during service, and noted other types of evidence the veteran could submit in support of his claim. The veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim was provided in March 2006 and in May 2007, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the May 2004 letter was issued to the veteran and his service representative prior to the August 2004 rating decision which denied the benefits sought on appeal; thus, this notice was timely. Since the veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issues here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. In June 2004, the veteran provided the RO with copies of his service medical records which were in his possession. The veteran also has been provided with VA examinations to address the contended causal relationship between TMJ dysfunction and active service and to determine the current nature and severity of his service-connected sleep disturbance. It appears that certain of the veteran's service medical records may have been lost. In July 2004, the Records Management Center notified the RO that the veteran's service medical records were not available at that facility. In cases where the veteran's service medical records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA must also provide an explanation to the appellant regarding VA's inability to obtain his or her service medical records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Veterans Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). In summary, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and no further action is necessary to meet the requirements of the VCAA. The veteran contends that he incurred TMJ dysfunction during active service. 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; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. As noted, the veteran's service medical records were not available from the RMC. A review of service medical records which the veteran submitted to the RO in June 2004 indicates that, at his enlistment physical examination in June 2000, the veteran denied any relevant medical history. Clinical evaluation was completely normal. The veteran was not treated for any TMJ problems during active service. In May 2003, the veteran complained of sharp left ear pain and upper molar tooth pain. The assessment was a possible sinus inflammation associated with eustachian tube dysfunction. A copy of his separation physical examination was not available for review. A review of the veteran's service dental records shows that, in August 2002, the veteran complained that his back teeth started to hurt while flying. Objective examination showed a deep mesial stick at tooth # 31 and large cavitation on the mesial. The assessment was dental caries. The post-service medical evidence shows that, on VA examination in April 2004, the veteran complained of chronic eustachian tube dysfunction and sharp ear pain, left greater than right. He reported that he had been seen recently by another physician who thought he might have TMJ dysfunction. His ear pain occurred 3 times a week and hurt in his molar teeth. He denied any tinnitus, vertigo, difficulty in clearing or popping his ears while flying, no grinding or crunching of his teeth. The veteran was a frequent gum chewer, although he had recently cut back. He also denied any nasal congestion, sinus problems, or allergies. Physical examination showed normal pinna and external auditory canals, a small amount of cerumen in the canals bilaterally, intact and mobile tympanic membranes, no evidence of middle ear effusion, no mastoid tenderness or erythema, bilateral TMJ tenderness, left worse than right, normal occlusion, good dentition, and no visible mucosal lesions. The VA examiner concluded that the veteran is more likely to have TMJ dysfunction which resulted in referred ear pain. The VA examiner also determined that the veteran's bilateral ear pain was more likely to be related to TMJ dysfunction and that his TMJ dysfunction was not likely to be related to active service. Finally, the VA examiner found that, based on the findings of this examination, the veteran's TMJ dysfunction was most likely secondary to the veteran's frequent gum chewing. The Board finds that the preponderance of the evidence is against the veteran's claim of service connection for TMJ dysfunction. Although not all of the veteran's service medical records were available, a review of the available service medical and dental records shows no treatment for TMJ problems. It appears that the veteran was first treated for TMJ dysfunction on VA examination in April 2004, when the VA examiner concluded that, although the veteran's TMJ dysfunction had resulted in referred ear pain, it was not related to active service. Absent a medical nexus between the veteran's TMJ dysfunction and active service, the Board finds that service connection for TMJ dysfunction is not warranted. The veteran also contends that he is entitled to an initial rating greater than 10 percent for service-connected sleep disturbance. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2 (2007); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. November 19, 2007). The veteran's service-connected sleep disturbance is evaluated as 10 percent disabling by analogy to 38 C.F.R. § 4.124a, DC 8199-8108 (narcolepsy). See 38 C.F.R. § 4.124a, DC 8199-8108 (2007). DC 8108 provides that narcolepsy will be rated as for petit mal epilepsy. Petit mal epilepsy is evaluated as minor seizures under the General Rating Formula for Major and Minor Epileptic Seizures found at 38 C.F.R. § 4.124a, DC 8911. See 38 C.F.R. § 4.124a, DC 8911 (2007). Note (2) to DC 8911 defines a minor seizure as consisting of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myclonic type) or sudden loss of postural control (akinetic type). See 38 C.F.R. § 4.124a, DC 8911, Note (2) (2007). Under DC 8911, a 10 percent rating is available for petit mal epilepsy manifested by a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is available for petit mal epilepsy manifested by at least 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months. A 40 percent rating is available for petit mal epilepsy manifested by at least 1 major seizure in the last 6 months or 2 in the last year or averaging at least 5 to 8 minor seizures weekly. A 60 percent rating is available for petit mal epilepsy manifested by at least 1 major seizure in 4 months over the last year or 9-10 minor seizures per week. An 80 percent rating is available for petit mal epilepsy averaging at least 1 major seizure in 3 months over the last year or more than 10 minor seizures weekly. Finally, a 100 percent rating is available for petit mal epilepsy averaging at least 1 major seizure per month over the past year. See 38 C.F.R. § 4.124a, DC 8911 (2007). The veteran's service medical records show that he denied any history of frequent trouble sleeping at his enlistment physical examination in June 2000. Clinical evaluation was completely normal. The veteran was treated frequently during active service for hypersomnolence. For example, on outpatient treatment in October 2002, the veteran complained of continuing difficulty sleeping. The assessment was hypersomnolence versus mononucleosis. The assessment was changed to hypersomnolence following outpatient treatment in November 2002. Following outpatient treatment in December 2002, the assessment was mild excessive daytime somnolence with a long sleep cycle. The differential diagnoses were long sleep syndrome, central nervous system hypersomnolence, and narcolepsy. The in- service examiner stated that she had a low suspicion for other sleep disorders such as obstructive sleep apnea. In February 2003, the assessment was borderline pathological hypersomnolence consistent with narcolepsy or central nervous system hypersomnolence. In March 2003, the assessment was changed to central nervous system hypersomnolence versus narcolepsy. In April 2003, the assessment was changed to hypersomnolence disorder. The post-service medical evidence shows that, on VA examination in April 2004, the veteran complained of difficulty maintaining alertness in class or performing activities that require prolonged attentiveness. The veteran reported a history of idiopathic hypersomnia in the final year of active service. The diagnoses included idiopathic hypersomnia. On private outpatient treatment in March 2005, the veteran complained of persistent daytime hypersomnolence. The private examiner noted that a sleep study showed no obstructive sleep apnea and a multiple sleep latency study showed marked daytime sleepiness without progression into rapid-eye movement (REM) sleep at the onset of sleep. The multiple sleep latency study did not meet the criteria of narcolepsy but was consistent with hypersomnolence. The veteran reported experiencing several different sleep-related episodes which occurred 1-2 times per week and difficulty arising from sleep when getting up in the morning. The veteran's sleep cycle also was somewhat disrupted, with awakening at 11-12 in the morning and attempting to go to bed between 10-11 p.m. but being unable to fall asleep. Neurological examination was normal. The private examiner stated that, although the veteran's multiple sleep latency study did not permit a diagnosis of narcolepsy, there were other components of the veteran's symptomatology which raise the question of narcolepsy. The assessment was a history of bouts of hypersomnolence and a neurological examination that was within normal limits. On VA examination in June 2007, the veteran complained of continuing sleep problems. He reported that on a good day he slept an average of 12-14 hours a day and, on rare occasions, he slept more than 16 hours in a day. The diagnosis was narcolepsy. This diagnosis was unchanged following VA outpatient treatment in August 2007. The Board finds that the preponderance of the evidence is against the veteran's claim for an initial rating greater than 10 percent for sleep disturbance. There is no objective medical evidence that the veteran's service-connected sleep disturbance (variously diagnosed as hypersomnolence and narcolepsy) is manifested by major or minor seizures such that an initial rating greater than 10 percent is warranted. The service medical records show only that the veteran was treated during active service for a variety of sleep problems, including hypersomnolence and narcolepsy. The post-service medical evidence shows continuing treatment for these sleep problems. In his March 2008 Brief, the appellant's service representative contends that the veteran's sleep disturbance should be rated under a different DC because the veteran does not experience seizures. Current law and regulations provide that, when an unlisted condition (such as narcolepsy) is encountered, it will be rated by analogy. See 38 C.F.R. § 4.27 (2007). As noted above, however, the medical evidence of record shows that the veteran was diagnosed consistently as having narcolepsy during and after active service. An in- service examiner opined in December 2002 that the veteran experienced mild excessive daytime hypersomnolence and there was only a low suspicion that he had obstructive sleep apnea. A private examiner concluded in March 2005 that the veteran's sleep symptomatology both supported and weighed against a diagnosis of narcolepsy. The veteran was again diagnosed as having narcolepsy following subsequent VA outpatient treatment in June and August 2007. Further, the representative offered no suggestions for a more appropriate diagnostic code. After reviewing all of the medical evidence of record, the Board finds that the veteran's service- connected sleep disturbance is evaluated appropriately as 10 percent disabling by analogy to 38 C.F.R. § 4.124a, DC 8199-8108 (narcolepsy). See 38 C.F.R. § 4.124a, DC 8199- 8108 (2007). In adjudicating the veteran's higher initial rating claim for service-connected sleep disturbance, the Board has considered Fenderson and Hart and whether the veteran is entitled to increased evaluations for separate periods based on the facts found during the appeal period. In Fenderson, the Veterans Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Veterans Court also discussed the concept of the "staging" of ratings and found that, in cases where an appellant disagrees with an initial disability evaluation, it was possible for VA to assign separate percentage evaluations for separate periods based on the facts found during the appeal period (as in this case). See Fenderson, 12 Vet. App. at 126. The recent decision in Hart extends Fenderson to all increased evaluation claims. As noted above, the evidence of record, however, from the day the veteran filed this claim to the present supports the conclusion that he is not entitled to additional increased compensation during any other time within the appeal period. As the preponderance of the evidence is against the veteran's claims, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for temporomandibular joint (TMJ) dysfunction is denied. Entitlement to an initial rating greater than 10 percent for sleep disturbance is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs