Citation Nr: 1004497	
Decision Date: 01/29/10    Archive Date: 02/16/10

DOCKET NO.  08-17 476	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for sleep apnea, to 
include as due to an undiagnosed illness.

2.  Entitlement to service connection for bronchial asthma, 
to include as due to an undiagnosed illness. 


ATTORNEY FOR THE BOARD

Tiffany Sykes, Associate Counsel




INTRODUCTION

The Veteran served on active military duty from October 1963 
to September 1965, January 1991 to June 1991, September 1994 
to December 1994, and January 2002 to October 2002.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision issued in July 2007 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in San Juan, the Commonwealth of Puerto Rico.


FINDINGS OF FACT

1.  The Veteran had active service in the Southwest Asia 
Theater of operations during the Persian Gulf War.

2.  Sleep apnea is a known clinical diagnosis and is not 
shown to be causally or etiologically related to any 
disease, injury, or incident of service.

3.  Bronchial asthma is a known clinical diagnosis and is 
not shown to be causally or etiologically related to any 
disease, injury, or incident of service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for sleep apnea have 
not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131 
(West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2009).

2.  The criteria for service connection for bronchial asthma 
have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 
1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2009).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations impose obligations on VA to provide 
claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; and (3) that 
the claimant is expected to provide.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), 
the United States Court of Appeals for Veterans Claims 
(Court) held that the VCAA notice requirements of 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a service connection claim.  Those five 
elements include: 1) Veteran status; 2) existence of a 
disability; 3) a connection between the Veteran's service 
and the disability; 4) degree of disability; and 
5) effective date of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the 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 (AOJ) decision 
on the claim for VA benefits.  

The Board finds that VA has satisfied its duty to notify 
under the VCAA.  In this regard, an October 2006 letter, 
sent prior to the initial unfavorable AOJ decision issued in 
July 2007, advised the Veteran of the evidence and 
information necessary to substantiate his service connection 
claims as well as his and VA's respective responsibilities 
in obtaining such evidence and information.  Such letter 
also informed him of the evidence and information necessary 
to establish a disability rating and an effective date in 
accordance with Dingess/Hartman, supra.  

VA also fulfilled its duty to assist the Veteran by 
obtaining all relevant evidence in support of his claim that 
is obtainable, and therefore appellate review may proceed 
without prejudicing him.  38 U.S.C.A. § 5103A; 
38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. 
App. 384 (1993).  The AOJ obtained his service treatment 
records (STRs) from October 1986 to October 2003, VA 
treatment records, and private medical records.  The Veteran 
has not identified any additional, outstanding records 
necessary to decide his pending appeal.  

In this regard, the Board notes that the Veteran had a 
period of active duty from October 1963 to September 1965; 
however, STRs from such period are not contained in the 
claims file.  In January 2000, the RO requested such records 
from the National Personnel Records Center (NPRC); however, 
NPRC indicated that the Veteran's records had not yet been 
retired to such location.  As such, in February 2000, the RO 
requested the records from the Records Management Center 
(RMC); however, later that month, RMC indicated that such 
records were not found.  Thereafter, in December 2006, the 
RO again requested all STRs from NPRC and all such records 
were mailed.  However, as indicated previously, only those 
dated from October 1986 to October 2003 were obtained.  
While the Veteran was not specifically advised of VA's 
inability to obtain his STRs from his first period of active 
duty, the Board finds no prejudice to the Veteran in 
proceeding with a decision in this matter.  In this regard, 
the Board observes that the Veteran has never alleged that 
he incurred sleep apnea or bronchial asthma during his first 
period of active duty.  Rather, he claims that such 
disorders are related to his service in Southwest Asia, 
where he served from February 1991 to May 1991.  Moreover, 
as will be discussed further, records dated prior to 2004 
fail to reveal complaints of the Veteran's claimed disorders 
and the first diagnoses not rendered until October 2005.  
Therefore, while VA has not been able to obtain the 
Veteran's STRs from his first period of active duty, the 
Board finds no prejudice to him in proceeding with his 
appeal as such records have no bearing on the issues at 
hand.

However, in cases such as these, VA has a heightened duty to 
explain its findings and conclusions and to consider 
carefully the benefit of the doubt rule.  O'Hare v. 
Derwinski, 1 Vet. App. 365, 367 (1991).  As will be 
discussed below, the Board's analysis of the Veteran's 
claims has been undertaken with this duty in mind.  

The Board notes that the Veteran has not been provided with 
a VA examination in order to determine whether his claimed 
sleep apnea and bronchial asthma are related to his military 
service.  However, as will be discussed below, the Veteran's 
service treatment records are negative for complaints, 
treatment, or diagnoses of either disorder and such were not 
diagnosed until after the Veteran's service discharge.  
Moreover, the Board finds that the Veteran's lay statements 
regarding the in-service incurrence and continuity of 
symptomatology relevant to each claimed disorder are 
outweighed by the remainder of the evidence of record.  As 
such, the Board finds that there is no indication that sleep 
apnea or bronchial asthma, or persistent or recurrent 
symptoms of either disorder, may be associated with the 
Veteran's military service.  Thus, a remand for examination 
and/or opinion is not necessary to decide the claims.  See 
38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. 
App. 79 (2006) (discussing circumstances when a VA 
examination is required).

Thus, the Board finds that VA has fully satisfied the duty 
to assist.  In the circumstances of this case, additional 
efforts to assist or notify the Veteran in accordance with 
the VCAA would serve no useful purpose.  See Soyini v. 
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to 
requirements of the law does not dictate an unquestioning, 
blind adherence in the face of overwhelming evidence in 
support of the result in a particular case; such adherence 
would result in unnecessarily imposing additional burdens on 
VA with no benefit flowing to the Veteran); Sabonis v. 
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only 
result in unnecessarily imposing additional burdens on VA 
with no benefit flowing to the Veteran are to be avoided).  
VA has satisfied its duty to inform and assist the Veteran 
at every stage in this case, at least insofar as any errors 
committed were not harmful to the essential fairness of the 
proceeding.  Therefore, the Veteran will not be prejudiced 
as a result of the Board proceeding to the merits of his 
claims.

II.  Analysis

Service connection may be granted 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(a).  Service 
connection may also 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).

Direct service connection may not be granted without medical 
evidence of a current disability; medical or, in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and medical evidence of 
a nexus between the claimed in-service disease or injury and 
the present disease or injury.  38 U.S.C.A. § 1112; 
38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 
498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) 
[(table)].

Alternatively, service connection may be established under 
38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of 
a chronic disease in service or during an applicable 
presumption period under 38 C.F.R. § 3.307 and (ii) present 
manifestations of the same chronic disease, or (b) when a 
chronic disease is not present during service, evidence of 
continuity of symptomatology. 

Because the Veteran served in the Southwest Asia Theater of 
operations during the Persian Gulf War, service connection 
may also be established under 38 C.F.R. § 3.317.  In this 
regard, the Board notes that the Veteran's service personnel 
records reflect service in Southwest Asia from February 1991 
to May 1991.  Under 38 C.F.R. § 3.317, service connection 
may be warranted for a Persian Gulf Veteran who exhibits 
objective indications of a qualifying chronic disability 
that became manifest during active military, naval or air 
service in the Southwest Asia theater of operations during 
the Persian Gulf War, or to a degree of 10 percent or more 
not later than not later than December 31, 2011. 38 C.F.R. § 
3.317(a)(1).

For purposes of 38 C.F.R. § 3.317, there are three types of 
qualifying chronic disabilities: (1) an undiagnosed illness; 
(2) a medically unexplained chronic multi symptom illness; 
and (3) a diagnosed illness that the Secretary determines in 
regulations prescribed under 38 U.S.C. 1117(d) warrants a 
presumption of service-connection.

The definition of an undiagnosed illness is a condition that 
by history, physical examination and laboratory tests cannot 
be attributed to a known clinical diagnosis.  In the case of 
claims based on undiagnosed illness under 38 U.S.C.A. § 
1117; 38 C.F.R. § 3.117, unlike those for "direct service 
connection," there is no requirement that there be competent 
evidence of a nexus between the claimed illness and service.  
Gutierrez v. Principi, 19 Vet. App. at 8-9.  Further, lay 
persons are competent to report objective signs of illness.  
Id.

A medically unexplained chronic multi symptom illnesses is 
one defined by a cluster of signs or symptoms, and 
specifically includes chronic fatigue syndrome, 
fibromyalgia, and irritable bowel syndrome, as well as any 
other illness that the Secretary determines meets the 
criteria in paragraph (a)(2)(ii) of this section for a 
medically unexplained chronic multi symptom illness.

There are currently no diagnosed illnesses that have been 
determined by the Secretary to warrant a presumption of 
service connection under 38 C.F.R. § 3.317(a)(2)(C).

When there is an approximate balance of positive and 
negative evidence regarding any issue material to the 
determination of a matter, the Secretary shall give the 
benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 
38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. 
App. 49, 53 (1990).  

As indicated previously, the Veteran's STRs from his first 
period of active duty from October 1963 to September 1965 
are unavailable.  As such, the Board is required to provide 
a heightened explanation of its findings and a careful 
consideration of the benefit of the doubt rule.  38 U.S.C.A. 
§ 5107(b).  However, there is no presumption, either in 
favor of the claimant or against VA, arising from missing 
records.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 
(2005) (the Court declined to apply an "adverse presumption" 
where records have been lost or destroyed while in 
Government control which would have required VA to disprove 
a claimant's allegation of injury or disease in service in 
these particular cases).  Moreover, the case law does not 
lower the legal standard for proving a claim for service 
connection but rather increases the Board's obligation to 
evaluate and discuss in its decision all the evidence that 
may be favorable to the Veteran.  Russo v. Brown, 9 Vet. 
App. 46 (1996).  

The Veteran contends he has sleep apnea and bronchial asthma 
as a result of his active service in the Persian Gulf War, 
to include as a result of an undiagnosed illness.  He also 
claims that he developed sleep apnea as a result of 
receiving the Anthrax vaccination.  Therefore, the Veteran 
claims that service connection for such disorders is 
warranted.

With respect to the Veteran's contention that he is entitled 
to service connection for sleep apnea and bronchial asthma 
due to an undiagnosed illness, the Board finds that both 
disorders are known clinical diagnoses.  In this regard, the 
Board notes that the record reflects that the Veteran was 
diagnosed with sleep apnea and bronchial asthma in October 
2005.

Because the medical evidence shows that the Veteran claimed 
disorders have been diagnosed as sleep apnea and bronchial 
asthma, he is not entitled to service connection based on an 
undiagnosed illness.  Further, these disorders are not an 
illness which the Secretary has determined warrants 
presumptive service connection.  Therefore, service 
connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is 
not warranted.  As such, the Board must consider whether 
service connection for either claim may be granted on a 
direct basis.

Here, there is no disputing the Veteran meets the first 
requirement for any service-connection claim, which is proof 
of the existence of current diagnoses of sleep apnea and 
bronchial asthma.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. 
Cir. 2000). As previously mentioned, the Veteran was 
diagnosed with sleep apnea and bronchial asthma in October 
2005. 

Consequently, the determinative issue is whether the sleep 
apnea and bronchial asthma are attributable to his military 
service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) 
("A determination of service connection requires a finding 
of the existence of a current disability and a determination 
of a relationship between that disability and an injury or 
disease incurred in service.").  See also Maggitt v. West, 
202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 
F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. 
App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 
1308 (Fed. Cir. 1998).  

The Veteran's STRs are completely silent regarding 
complaints, treatment, or diagnoses of sleep apnea or 
bronchial asthma during service.  Moreover, such records are 
negative for any complaints regarding sleeping or breathing 
difficulty.  In fact, on Report of Medical History forms 
dated in October 1982, October 1986, April 1991, February 
1994, May 1996, November 1999, and October 2001, the Veteran 
specifically indicates that he did not previously or 
currently have asthma, shortness of breath, or frequent 
trouble sleeping.  Moreover, a June 2005 VA treatment record 
shows that the Veteran denied having any problems while on 
active duty.

Post-service records reflect that, in September 2004, the 
Veteran indicated that he had a history of bronchial asthma 
and currently experienced sleep disturbance.  Following 
additional examination, to include a sleep study and 
pulmonary function testing, bronchial asthma and sleep apnea 
were diagnosed in October 2005.  

Based on the preceding evidence, the Board finds that the 
Veteran has current diagnoses of sleep apnea and bronchial 
asthma.  However, the competent and probative evidence of 
record fails to show that such disorders are related to any 
disease, injury, or incident of the Veteran's military 
service, to include an Anthrax vaccination.  In this regard, 
while he is competent to testify as to his difficulty 
breathing and sleeping during and after his military 
service, the Board finds that such statements are outweighed 
by the remainder of the evidence of record.  

Specifically, the Veteran's service treatment records are 
negative for any complaints, treatment, or diagnoses 
relevant to sleep apnea or bronchial asthma.  Moreover, he 
expressly denied asthma, shortness of breath, or frequent 
trouble sleeping throughout his military career.  The Board 
finds such evidence, made contemporaneous to service, to be 
more probative than his statements made a number of years 
after his service discharge.  Moreover, the Board observes 
that the first medical evidence demonstrating a diagnosis of 
either disorder is dated in October 2005.  

The Board notes that the lack of contemporaneous medical 
records may be a fact that the Board can consider and weigh 
against a Veteran's lay evidence, the lack of such records 
does not, in and of itself, render lay evidence not 
credible.  The Board, however, finds that the fact that the 
Veteran's post-service treatment records are negative for 
any complaints referable to his claimed disorders for 
approximately two years after his service discharge to be 
persuasive evidence against his claims.  Buchanan v. 
Nicholson, 451 F. 3d 1331, 1336-37 (2006).  

Furthermore, the Veteran was not diagnosed with either 
disorder until October 2005, approximately three years after 
his service discharge.  In this regard, the Board notes that 
in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), 
the United States Court of Appeals for the Federal Circuit 
(Federal Circuit) stated that lay evidence is competent and 
sufficient in certain instances related to medical matters.  
Specifically, the Federal Circuit determined that a 
layperson may establish a diagnosis of a condition when (1) 
a layperson is competent to identify the medical condition, 
(2) the layperson is reporting a contemporaneous medical 
diagnosis, or (3) lay testimony describing symptoms at the 
time supports a later diagnosis by a medical professional.  
Id.  Similarly, the Court has held that when a condition may 
be diagnosed by its unique and readily identifiable 
features, the presence of the disorder is not a 
determination "medical in nature" and is capable of lay 
observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007). 

Thus, while the Veteran is competent to report experiencing 
symptoms such as difficulty breathing or sleeping, he is not 
competent to diagnose sleep apnea or bronchial asthma, which 
are complex disorders requiring testing to definitely 
diagnose (i.e., a sleep study or pulmonary function testing, 
respectively).  Moreover, to the extent that the Veteran is 
competent to report a contemporaneous medical diagnosis of 
bronchial asthma, as he indicated in September 2004, such 
diagnosis is still approximately two years following his 
service discharge.  Additionally, the Veteran is not 
competent to provide an etiological nexus between any 
current sleep apnea and/or bronchial asthma and service as 
such assessments are not simple in nature.  See Jandreau; 
see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) 
(although the Veteran is competent in certain situations to 
provide a diagnosis of a simple condition such as a broken 
leg or varicose veins, the Veteran is not competent to 
provide evidence as to more complex medical questions). 

In light of the foregoing, the Board finds that, while the 
Veteran is competent to report experiencing sleeping or 
breathing difficulty during his military service, such 
statements are outweighed by the remainder of the evidence 
of record.  Moreover, to the extent that he has contended a 
continuity of symptomatology of sleeping and breathing 
difficulty since service, the Board finds that the probative 
value of such allegation is outweighed by the lack of 
contemporaneous medical evidence.  See Buchanan, supra.  
Furthermore, there is no competent and probative evidence 
that the Veteran's sleep apnea and bronchial asthma are 
related to his military service, to include an Anthrax 
vaccination.  In this regard, no medical professional has 
related such disorders to his service.  Therefore, as there 
is no competent and probative evidence linking the Veteran's 
sleep apnea and/or bronchial asthma to any disease, injury, 
or incident of service, service connection for such 
disorders is not warranted.

In reaching the foregoing conclusions, the Board has 
considered the applicability of the benefit of the doubt 
doctrine.  However, the preponderance of the evidence is 
against the Veteran's claims of entitlement to service 
connection for sleep apnea and bronchial asthma.  As such, 
that doctrine is not applicable in the instant appeal, and 
his claims must be denied.  38 U.S.C.A. § 5107.










	(CONTINUED ON NEXT PAGE)


ORDER

Service connection for sleep apnea, to include as due to an 
undiagnosed illness, is denied.

Service connection for bronchial asthma, to include as due 
to an undiagnosed illness, is denied. 



____________________________________________
A. JAEGER
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs