Citation Nr: 0814575 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-41 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for sleep apnea to include shortness of breath, difficulty breathing and recurrent respiratory infections as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer R. White, Law Clerk INTRODUCTION The veteran served on active duty from December 1986 to July 1987 and November 1990 to May 1991. The veteran served in the Southwest Asia theater of operations from December 1990 to April 1991 in support of operation Desert Shield/Desert Storm. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board notes that the issue of service connection for fibromyalgia was previously on appeal. However, a January 2007 rating decision awarded service connection for that disorder, and considered symptoms of fatigue in assigning a compensable evaluation. Thus, the only issue remaining on appeal is listed on the cover page. FINDING OF FACT 1. Sleep apnea was not shown in service or for many years thereafter, and is not related to an incident of service. 2. A chronic respiratory disorder other than sleep apnea was not shown in service, nor are there objective indicators of present disability. CONCLUSION OF LAW A chronic respiratory disorder, including sleep apnea was not incurred in or aggravated by active service, nor may service connection for an undiagnosed respiratory disorder be presumed. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 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) (2007). The notice requirements of the VCAA require VA to notify the veteran 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; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such 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); see also Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, in an October 2002 letter, issued prior to the decision on appeal, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence he has that pertains to the claim. A letter advising the veteran of the evidence needed to establish a disability rating and effective date was issued in March 2006. The veteran responded that he had no other evidence to submit. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes some of the veteran's service treatment records, and post service treatment records and examination reports. The RO attempted to locate the veteran's service treatment records through official sources. The veteran was given notice of these unsuccessful attempts to locate his records in letters dated in November 2002 and July 2003. The veteran responded in a letter dated August 2003 that his symptoms did not appear during his time in the Persian Gulf and any medical records located from that time period would not indicate any relevant symptomatology. The veteran further asserted that his symptoms did not begin until 4-5 years after his service in the Gulf, which is also reflected in the private treatment records received from Dr. S. Moreover, in December 2002, February 2005, and April 2006 correspondences, the veteran indicated that he had no other relevant information or evidence to submit to substantiate his claim. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any question as to an appropriate disability rating or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis 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 (West 2002); 38 C.F.R. § 3.303 (2006). 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 medical 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 Pond v. West, 12 Vet App. 341, 346 (1999). VA is also authorized to pay compensation to any Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, if the disability became manifest during service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of disability of 10 percent or more prior to December 31, 2011. 38 C.F.R. § 3.317 (2007). Compensation is payable under these provisions if by history, physical examination, and laboratory tests the disability cannot be attributed to any known clinical diagnosis. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPRC 8-98; 66 Fed. Reg. 56614-15 (Nov. 9, 2001). A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness; or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other disability determined by VA to meet these criteria; or any diagnosed illness found by VA to warrant a presumption of service connection. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317. "Objective indications of a qualifying chronic disability" include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. "Chronic" is defined as a disability existing for six months or more, or a disability that exhibits intermittent episodes of improvement and worsening over a six-month period. Compensation is not payable under these provisions if there is affirmative evidence that an undiagnosed illness was not incurred during active duty in the Southwest Asia theater of operations. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a)(3) (2007). 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran claims service connection for breathing problems, to include recurrent respiratory infections. As noted in the Introduction, the majority of service treatment records are unavailable. However, the veteran reported that he did not experience his symptoms in service. Rather, such arose 4 to 5 years after service. His private treatment records note the veteran was treated for an upper respiratory infection in April 2000. He was given Amoxicillin. He was treated for rhinitis and sinusitis in July 2001. In December 2002 he was seen for a cough and congestion of 5 to 6 days duration. He was diagnosed with an upper respiratory infection and given Amoxicillin. He was seen in January 2003 for a sinus infection. In October 2003 he underwent a stress test in which he exercised for 15 minutes, getting a maximum heart rate of 192, with no mention of any respiratory difficulties. In November 2003, he was seen for a fever and cough. Diagnoses included sinusitis and bronchitis. VA pulmonary function studies in July 2002 revealed normal air flow. A December 2003 VA examination noted the veteran reporting intermittent and transient shortness of breath on tying his shoes or on exposure to air fresheners, dust, etc. Physical examination revealed that his lungs were clear to auscultation bilaterally. His lung fields were clear on a December 2003 chest x-ray. Sleep apnea studies were recommended. As to shortness of breath, the examiner indicated there was no diagnosis established. A sleep study conducted in March 2004 diagnosed mild obstructive sleep apnea. An April 2005 VA examination report noted that the veteran's lungs were clear to auscultation without wheezes, rales, or rhonchi. The only respiratory diagnosis provided was obstructive sleep apnea. After review, the Board finds that service connection is not warranted for a chronic respiratory disorder. The veteran concedes that his respiratory complaints began after his discharge from service. His private records reveal treatment for acute respiratory infections occurring on average of 1 to 2 times per year, with resolution of symptoms following treatment. There is nothing indicating his acute infections are related to service, and there is no evidence of a current, chronic respiratory disorder. In this regard, chest x-ray and pulmonary function studies are normal. There are no objective indicators of a chronic, undiagnosed respiratory disorder. The veteran's symptoms noted in the medical evidence have been attributed to known diagnoses of upper respiratory infection, bronchitis, sinusitis, rhinitis, and sleep apnea. To date, the Secretary has not determined that any such disorder warrants a presumption of service connection under 38 U.S.C.A. § 1117. In summary, the veteran concedes he did not have a respiratory disorder in service, or for several years thereafter and there is no competent medical evidence showing a chronic respiratory disorder other than sleep apnea. Moreover, none of the medical evidence suggests a relationship between his sleep apnea and service. Thus, service connection is not established. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a chronic respiratory disorder, including sleep apnea, is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs