Citation Nr: 1007113 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 99-18 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for sleep disturbance, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1982 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied entitlement to service connection for a number of disabilities including sleep disturbance. This matter was remanded by the Board in March 2001, May 2005 and most recently in July 2009. In a July 2009 decision the Board granted service connection for posttraumatic stress disorder (PTSD). FINDINGS OF FACT 1. The Veteran's sleep disturbance manifested by insomnia, nightmares, and night sweats has been attributed to a diagnosed illness, namely the Veteran's service-connected post traumatic stress disorder (PTSD). 2. A chronic sleep disorder has been diagnosed as sleep apnea and there is no competent evidence relating sleep apnea to service. CONCLUSION OF LAW A sleep disturbance, other than insomnia, nightmares and night sweats, was not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, 5126 (West 2002 & Supp. 2009) 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) (2009). Under the VCAA, VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) must request that the Veteran provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA provided VCAA required notice regarding his service connection claim, in correspondence sent to the Veteran in May 2001 and December 2007. The letter told him what evidence was needed to substantiate entitlement to service connection. The letter also notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his service connection claims, and identified his duties in obtaining information and evidence to substantiate his claims. The Veteran was not provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to Dingess, however, this decision confirms the RO's denial of benefits and the Veteran is therefore not prejudiced in regards to lack of Dingess notice. Proceeding with this matter in its procedural posture would not therefore prejudice the veteran. For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a Veteran submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the May 2001 and December 2007 letters complied with this requirement. The notice in this case was provided after the initial adjudication of the claim. This timing deficiency was cured by readjudication of the claim in supplemental statements of the case issued after the notice was provided. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained all available records, including service records, and records from various federal agencies. Additionally, the Veteran was afforded VA examinations in response to his claim. The prior remands were to afford the Veteran a sleep study, obtain additional medical opinions and to obtain reported private treatment records. The Board initially notes this matter was remanded in July 2009 in order to secure private medical records from Wilmington Health Associates, as the record indicated the Veteran had received treatment for his sleep disturbance through at least December 2003. The RO complied with the Board's remand instructions by sending a letter to the Veteran in July 2009, along with VA Form 21-4142, Authorization and Consent to Release Information, requesting the Veteran complete the form and return it to the RO. There was no response from the Veteran. VA is only obligated to obtain records that are adequately identified and for which necessary releases are submitted. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2)(ii), (3) (2009). The duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, a VA compensation and pension sleep study examination was scheduled for the Veteran in March 1998, however, the Veteran failed to appear for this appointment. The Veteran did appear for another sleep study in September 2004. A medical opinion was subsequently obtained on the question of whether the sleep apnea was related to service. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection Claim Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). For veterans with service in the Southwest Asia Theater of Operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Under this law and regulation, 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. An undiagnosed illness is defined as 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. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. Medically unexplained chronic multi symptom illnesses are defined by a cluster of signs or symptoms, and are currently limited to chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as the Secretary has not determined that any other conditions meet the criteria for a medically unexplained chronic multi symptom illness. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). 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). "Objective indications of 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. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). Background The Veteran's service medical records do not reveal any complaints or findings of a sleep disorder while he was in service. The Veteran was afforded a VA examination in September 1995. The examiner noted the Veteran reported that he had experienced early awakenings and a different sleep pattern since returning from the Persian Gulf. He was diagnosed as having a sleep disturbance. In February 1997 VA treatment records, the Veteran reported that he had sleep disturbances that began directly following his experience in the Gulf War which had progressively gotten worse. Prior to 1992, the Veteran reported sleeping very well and solidly. The examiner diagnosed insomnia, unspecified, temporally linked to Desert Storm action. An April 1997 VA medical treatment record shows that the Veteran had been given a diagnosis of PTSD with sleep disturbance as the prominent symptom. An August 1997 private psychologist, JR, diagnosed dysomnia, not otherwise specified, and opined there was some evidence for sleep disturbance, probably a result of the Veteran's mildly excessive preoccupation with multiple physical problems. At a September 1997 VA examination the Veteran reported sleep disturbance and that he was awake from about 2 am to 6 am every day. He stated that he was tired during the day and that he had nightmares about once a month regarding the Persian Gulf. The diagnosis was dysomnia, not otherwise specified. A March 1998 VA medical record shows the Veteran did not appear for a scheduled sleep study. In a November 1998, Dr. DRM of Wilmington Health Associates, noted the Veteran reported that he had been sleeping poorly, and was under a great deal of stress due to a family issue. In an October 1999 RO hearing, the Veteran testified that he did not have trouble sleeping prior to service, but that while in service, he developed sleeping problems. He stated that he did not report this problem because he was getting ready to be discharged. A January 1999 VA treatment record noted the Veteran reported he was a Gulf War veteran and had problems with sleep ever since service. His wife reported a history of snoring and rare apneas. The examiner noted the Veteran had a history of significant depression and was currently being treated with medication. The examiner diagnosed the Veteran with a history of PTSD who had problems maintaining sleep and it appeared that this was related to depression. The examiner also noted a history of sleep apnea was very unlikely. A February 2000 PTSD program evaluation report noted that veteran experienced symptoms associated with hyperarousal, including nightly sleep disturbance with mid-sleep and early morning awakening. He reported 4-5 hours sleep per night. A December 2002 VA treatment record noted the Veteran reported poor sleep, only receiving approximately 4 hours per night, waking up and not be able to fall back asleep. The examiner noted the Veteran had a diagnosis of depression and experienced sleep disturbance as well and flashbacks to his Gulf War service. In a November 2003 letter from the Veteran's spouse, she reported the Veteran had serious problems with sleep, to include going three days without sleep. In a letter submitted by Dr. DRM in December 2003, Dr. DRM stated the Veteran had been his patient since 1998 and that the Veteran experienced troubles with sleep dysfunction and adjustment disorder, as well as mood dysfunction. Sleep dysfunction had been persistent over this time and he had been poorly responsive to treatment. The examiner stated the Veteran's sleep dysfunction really dated back to the Desert Storm operation as noted in old medical records. In September 2004, the Veteran underwent a sleep study to evaluate for sleep apnea. The study was interpreted as showing sleep apnea. In a December 2007 VA medical opinion an examiner stated that review of the claims file did not suggest sleep apnea as a diagnosis related to military service. There was no sleep disturbance reported during military service. The examiner noted the Veteran's self-reported sleep disturbances beginning in approximately 1992, which did not suggest sleep apnea at that time. The fact that he had sleep apnea diagnosed approximately 12 years after his discharge from service was more likely related to his morbid obesity. It was noted that the Veteran weighed approximately 300 pounds when sleep apnea was identified. There was insufficient evidence to suggest when his sleep apnea came into effect, however; again, sleep apnea was more likely related to his body habitus than to his military career. The examiner noted the sleep study conducted in 2004, which was positive for obstructive sleep apnea. The examiner noted service treatment records were negative for sleep disruption during service and later reports of interrupted sleep did not suggest sleep apnea. The examiner noted a report by another examiner which stated the Veteran's symptoms were not congruent with sleep apnea but they did agree with depression. The examiner also noted the Veteran did not report to an earlier compensation and pension sleep study which would have helped clarify this issue further. Analysis Inasmuch as the Veteran's service records show that he served in Southwest Asia, he is a Persian Gulf War Veteran within the meaning of the applicable statute and regulation. The question remains, however, as to whether the record supports a finding that his claimed sleep disorder is a manifestation of an undiagnosed illness or qualifying chronic disability associated with his Persian Gulf War service. In order for a disability to be awarded service connection under the provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a), the disorders may not be attributable to a known diagnosis. The Veteran's sleep disorder is currently attributed to a diagnosed illness-obstructive sleep apnea and PTSD. Sleep apnea and PTSD are not among the recognized medically unexplained multi-system illnesses. Accordingly, the claimed disability is not a "qualifying chronic disability" and presumptive service connection under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 is not warranted. Additionally, the disability rating assigned to the Veteran's service-connected PTSD specifically contemplates chronic sleep impairment in rating that condition. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2009). As noted above, the Veteran is service-connected for his PTSD and has been assigned a 30 percent disability rating. Thus, service connection for sleep impairment (insomnia) as a symptom of PTSD has already been established. While VA is required to fully and fairly compensate all separate and distinct manifestations of a disability, a critical element to consider is whether any of the symptoms are duplicative of or overlapping. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). In cases of overlap, pyramiding or compensating the same signs and symptoms as part of different disabilities, must be avoided. 38 C.F.R. § 4.14 (2007). Here, sleep problems are attributed to a service-connected psychiatric disability. Such symptoms are included in the evaluation criteria for rating psychiatric disabilities, and hence may not be distinctly service connected in the absence of an additional, separate diagnosis, such as sleep apnea or a showing of undiagnosed illness. Turning to the elements necessary to establish direct service connection, the element of a current disability (obstructive sleep apnea) is established by the September 2004 sleep study. The Veteran has reported a continuity of sleep disturbance since service. The history he provided during his October 1999 hearing is that he had experienced chronic sleep disturbance since approximately 1992, prior to discharge from service. The Veteran also stated that he did not report this problem in service because he was getting ready to be discharged. While the Veteran has reported a continuity of symptoms since service, his complaints of sleep disturbance have been attributed to as symptoms of his already service-connected PTSD. The VA examiner essentially found that the symptoms described in 1992 were not indicative of sleep apnea. Sleep apnea was first found in 2004, approximately 12 years after the Veteran's separation from active duty service. Therefore, the Veteran's reports of a continuity of symptomatology must also be weighed against the clinical evidence of record, including the lack of a finding of sleep apnea until years after service, and the examination report of the December 2007 VA examiner, who provided a medical opinion against a nexus between the current sleep apnea and active duty service. The December 2007 attributed the sleep apnea to the Veteran's weight. The service treatment records do not show any findings of excessive weight, and this condition developed after service. As the examiner who provided the December 2007 opinion explained the reasons for his opinion and they are consistent with the evidence of record, his opinion is entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In a letter submitted in December 2003, Dr. DRM stated the Veteran's sleep dysfunction really dated back to the Desert Storm operation as noted in old medical records. Dr. DRM did not address sleep apnea as opposed to the now service connected sleep dysfunction. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's diagnosis of sleep apnea was many years after his separation from active duty service. There is no probative evidence relating the sleep apnea to active duty service. No other sleep disorder (other than those already service connected) has been reported. The Board therefore concludes that the evidence is against a nexus between additional current sleep disorders and active duty service. Accordingly, the preponderance of the evidence is against the claim, and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for sleep disturbance, to include as due to an undiagnosed illness, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs