Citation Nr: 0814847 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 01-03 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a chronic sleep disorder, claimed as sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from August 1970 to August 1972 and from November 1974 until his retirement in November 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Regional Office (RO) that denied the veteran's claim for service connection for sleep apnea. This case was previously before the Board in August 2006, at which time it was remanded for additional development of the record. As the requested development has been accomplished, the case is again before the Board for appellate consideration. The August 2006 Board decision also granted an initial 10 percent evaluation for restless leg syndrome, and remanded the claim for an earlier effective date for an award of a 50 percent rating for vascular headaches. Based on the receipt of additional evidence, the RO, in a September 2007 rating action, assigned December 1, 1996, the day following discharge from service, as the effective date for a 50 percent evaluation for headaches. Accordingly, these issues are no longer before the Board and this decision is limited to the issue set forth on the preceding page. FINDINGS OF FACT 1. Service connection is in effect for restless leg syndrome. 2. The veteran's sleep apnea was not shown in service or for several years thereafter, and is not related to service. 3. A chronic sleep disorder other than sleep apnea is directly related to the veteran's restless leg syndrome. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. A chronic sleep disorder other than sleep apnea, is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 the veteran 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, supra. In this case, in June 2003 and August 2006 letters, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claim, 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 submit any further evidence he has in his possession that pertains to the claim. The August 2006 letter also advised the veteran of the evidence needed to establish a disability rating and effective date. The case was last readjudicated in September 2007. 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 the veteran's service treatment records, post-service private and VA treatment records, VA examination reports, and hearing transcripts. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. 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, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant'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 appellant 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). 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). The regulations provide that service connection is warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The veteran asserts that service connection is warranted for a sleep disorder, claimed as sleep apnea. He claims that it was either incurred in service, or that it is related to his service-connected restless leg syndrome. Turning to the evidence, on a number of occasions in service, the veteran was heard to complain of difficulty sleeping. While on two of those occasions, the veteran's sleep problems were felt to be the result of various "family stresses," on other occasions those problems appear to have been attributed to problems with the veteran's lower extremities. More specifically, in August 1995, during his second period of active military service, the veteran was heard to complain of a swelling of both ankles, accompanied by a "pins and needles" sensation which interrupted his sleep. In September 1996, the veteran complained of pain and twitching in his left foot, which caused him "to awake during sleep." At the time of a service separation examination in November 1996, the veteran once again complained of "frequent trouble sleeping." Service treatment records are negative for diagnosis or findings of sleep apnea. Private medical records disclose that the veteran was diagnosed with moderate obstructive sleep apnea in December 2002. On VA examination in July 2007, the examiner, following review of the claims file and examination of the veteran, opined that the veteran's sleep apnea was not related to service. He did conclude, however, that the veteran also has a chronic sleep disorder due to his restless leg syndrome. Thus, as sleep apnea was not shown in service, and the preponderance of competent medical evidence is against a finding that the disorder is related to service, service connection for that disorder is denied. However, as the veteran has also been diagnosed with a chronic sleep disorder due to his restless legs syndrome, service connection for a chronic sleep disorder other than sleep apnea is warranted. ORDER Service connection for sleep apnea is denied. Service connection for a chronic sleep disorder other than sleep apnea is granted, subject to the regulations applicable to the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs