Citation Nr: 0814544 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-23 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for gout. 2. Entitlement to service connection for obstructive sleep apnea. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an umbilical hernia. 4. What rating is warranted for lumbar degenerative disc disease from January 1, 2004? REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The veteran had active service from May 1969 to February 1973, November 1990 to April 1991, and February to December 2003. During the interims, he was a member of the South Carolina Air National Guard (SCANG), during which, he served tours of active duty for training and inactive duty for training. This appeal to the Board of Veterans' Appeals (Board) arose from November 2004 and January 2006 rating decisions of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The veteran, with his June 2005 substantive appeal (VA Form 9), elected a formal hearing before an RO Decision Review Officer. A November 2005 RO letter informed the veteran that his hearing was scheduled for January 10, 2006. In a February 2006 statement, he confirmed his oral election of an informal conference in lieu of a formal hearing. A written synopsis of the January 2006 informal conference is of record. In the June 2005 VA Form 9, the veteran also perfected appeals of the denial of service connection for a bilateral shoulder disorder, chronic dizziness, chronic rhinitis, neuralgia and other neurological symptoms, chronic headaches, hypertension, and a right elbow disorder. In a January 2006 VA Form 21-4148, submitted prior to certification to the Board, the claimant withdrew his appeal of those issues. Thus, they are no longer in an appeal status and will not be addressed in the decision below. See 38 C.F.R. § 20.204 (2007). As discussed in the remand section below, the issues what initial rating is warranted for lumbar degenerative disc disease, and whether new and material evidence has been submitted to reopen his claim for service connection for an umbilical hernia, require additional development. Hence, they are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the probative evidence indicates that gout is not related to an in-service disease or injury, and it does not show that the veteran was diagnosed with or otherwise shown to have had gout during a period of active duty or active duty for training. 2. The preponderance of the probative evidence indicates that obstructive sleep apnea is not related to an in-service disease or injury, nor does it show the veteran to have been diagnosed with or otherwise shown to have had obstructive sleep apnea during a period of active duty or active duty for training. CONCLUSIONS OF LAW 1. Gout was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(24), 1106, 1110, 1131, 5103, 5103A, 5107(b) (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.1(k), 3.6(a),(c)(3), 3.102, 3.159, 3.303 (2007). 2. Obstructive sleep apnea was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(24), 1106, 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.1(k), 3.6(a),(c)(3), 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the 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, have been met. There is no issue as to providing an appropriate application form or completeness of the application. RO letters dated in August 2004, notified the veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain, and of need to submit all pertinent evidence in his possession. A March 2006 supplemental RO letter provided adequate notice of how disability ratings and effective dates are assigned in the event service connection is granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). While the veteran did not receive full notice prior to the initial decision, after pertinent notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claims and did in fact meaningfully participate. Thus, the purpose of the notice was not frustrated. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Further, the claims were readjudicated after issuance of the March 2006 letter, which cured any timing-of- notice error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). VA has also fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. 38 C.F.R. § 3.159(c). In sum, there is no evidence of any VA error in notifying or assisting the veteran that reasonably affects the fairness of this adjudication. The Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim 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). Governing Law and Regulation 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Service connection may be established for disability resulting from injury or disease incurred in service. Active military service includes active duty, any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training during which the individual concerned was disabled from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 1106; 38 C.F.R. § 3.6(a). Service connection may be granted for any disease diagnosed after active duty for training, when all the evidence, including that pertinent to service, establishes that the disease was incurred during active duty for training or, as concerns an injury and the specified disorders, during inactive duty for training. 38 C.F.R. § 3.303(d). Service connection on a presumptive basis is not available where the only service performed is active duty for training or inactive duty for training. Biggins v. Derwinski, 1 Vet. App. at 476-78. Analysis As noted above, service connection cannot be awarded for a disease that was incurred or aggravated while performing inactive duty for training. 38 C.F.R. § 3.303(d). As both gout and sleep apnea are diseases, and not injury residuals, the analysis below is confined to the appellant's entitlement based on active duty and active duty for training service. Gout. Service medical records are negative for any entries related to complaints, findings, or treatment for, gout. Reports of periodic physical examinations and the examination at separation from active service note that the lower extremities were assessed as normal. The September 1997 VA examination report references no complaints or findings pertaining to gout. At the September 2004 VA examination, he told the examiner that he had pain in both elbows and ankles in 2003, and a physician told him he might have gout, but he was never diagnosed with the disorder. He had experienced bilateral elbow and ankle pain about once a week during the prior year, with some swelling on the medial side of the ankles. Physical examination of the ankles revealed no edema, erythema, heat, or tenderness. Range of motion was normal without pain. X-rays were read as having shown no acute traumatic injury. The examiner noted that laboratory tests revealed the veteran to have elevated uric acid. Nonetheless, his diagnosis was gout of bilateral ankles by veteran's history, with elevated uric acid, currently asymptomatic. The examiner suggested the veteran obtain treatment for an elevated uric acid to preclude active symptomatology. VA outpatient records do not include gout among the veteran's problem areas or diagnoses. As noted, the probative medical evidence shows the veteran does not have a currently diagnosed disorder of gout. Elevated uric acid alone is a laboratory value and not a specific disorder. Service connection requires that there be evidence of an underlying disorder. Cf. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). In the absence of a diagnosis of gout, the Board is constrained to find the preponderance of the evidence is against the claim. 38 C.F.R. § 3.303. The benefit sought on appeal is denied. Obstructive Sleep Apnea. A September 2004 VA sleep study notes the examiner's opinion that the results were positive for obstructive sleep apnea. The veteran applied for service connection for sleeplessness/insomnia in 1997. The examination report noted he described it as very intermittent, it started around 1993 or 1994, and he had episodes once to twice a month. He denied daytime somnolence or increased snoring. Examination revealed no related abnormalities, and the examiner diagnosed intermittent insomnia as described by the veteran. An April 1998 rating decision denied service connection for intermittent insomnia. The September 2004 VA examination report notes the veteran told the examiner that his wife and Guard buddies complained about his loud snoring for over 20 years. He reportedly awoke often with a dry throat from snoring. He stated that his wife was afraid he was not going to catch his breath, that he was sometimes tired during the day, and that he sometimes fell asleep during the day. Although the veteran told the examiner at the 2004 examination that his Guard buddies had complained about his snoring for over 20 years, there are no entries in the service medical records related to complaints, findings, or treatment for, snoring or other sleep-related complaints. The veteran did not indicate any such complaints on his Reports of Medical History for any of his periodic physical examinations, or during the Medical Evaluation Board that recommended his separation for other medical reasons. There is no probative evidence that his obstructive sleep apnea is causally related to either his active service, or his periods of active duty for training. Thus, the preponderance of the evidence is against the claim. 38 C.F.R. § 3.303. In reaching these decisions, the Board did not overlook the veteran's or his representative's written statements. While lay witnesses are competent to describe experiences and symptoms that result therefrom, because lay persons are not trained in the field of medicine, they are not competent to provide medical opinion evidence as to the current diagnosis or etiology of a problem. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, statements by the veteran and his representative addressing the etiology of claimed disability are not probative evidence as to the issue on appeal. The benefit sought on appeal is denied. Finally, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for gout is denied. Entitlement to service connection for obstructive sleep apnea is denied. REMAND Under the VCAA duty to assist, VA is under an affirmative duty to obtain any related VA and other federal records. It also provides that the duty to assist a claimant applies to petitions to reopen a finally decided claim as with an original claim. 38 C.F.R. § 3.159(c). In his application to reopen his claim, in written statements, and to the VA examiners that examined him, the appellant asserted that his umbilical hernia surgery was conducted at the VA Medical Center, Augusta, Georgia, in July 1997. This fact is also noted in his Reserve service medical records. Unfortunately, the records of that procedure are not in claims file, and the Board notes no evidence that the RO sought to obtain those records during the adjudication of the claim. The veteran was not afforded an examination to determine the extent of the severity of his low back disorder following receipt of his Notice of Disagreement. A current examination will assist the Board's appellate review of the severity of the veteran's low back disability. The Board also notes an April 2004 Authorization To Disclose Information To Social Security Administration signed by the veteran. The claims file contains a cryptic entry to the effect that the veteran was considering seeking benefits from that agency for his back. Once VA is put on notice that the veteran is in receipt of such benefits, VA has a duty to obtain these records. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181 (1992). Accordingly, the case is REMANDED for the following action: 1. Send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the lumbar disorder, as outlined by the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); and Dingess v. Nicholson, 19 Vet. App. 473 (2006). In particular the appellant must be given precise notice of the rating criteria pertaining to his claim of entitlement to a higher initial rating for a low back disorder under 38 C.F.R. § 4.71a. 2. Inquire of the veteran if he actually applied for benefits administered by the Social Security Administration. If so, the RO should inquire of that agency for any existing records related to the veteran's application or award. Ongoing VA medical records regarding treatment the veteran's back should also be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c). 3. The RO shall contact the Augusta VA Medical Center and request that they provide photocopies of the medical records pertaining to the appellant's surgery for an umbilical hernia in July 1997. 4 After the above is complete, the RO shall arrange an appropriate medical examination to determine the severity of the veteran's low back disorder. All indicated tests should be accomplished and all clinical findings should be reported in detail. The claims folder should be provided to the examiner for review as part of the examination. The nature and extent of the low back disorder should be clearly set forth, as should all functional limitations caused by the disorder. In addition to addressing the range of lumbar motion, the examiner is requested to specifically address the extent, if any, of functional loss of use of the low back due to pain/painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the veteran's symptoms are most prevalent - such as during flare-ups or prolonged use. These findings, if possible, should be portrayed in terms of degrees of additional loss of motion. 5. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event the veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 7. Then readjudicate the veteran's claims in light of the additional evidence obtained. If any claim is not granted to his satisfaction, send him and his representative a Supplemental Statement of the Case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The case should then be returned to the Board for further appellate consideration. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs