Citation Nr: 1138245 Decision Date: 10/13/11 Archive Date: 10/19/11 DOCKET NO. 07-21 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for disability manifest by sleep disturbance, to include as due to undiagnosed illness. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to April 1986, and from October 1986 to December 1992. This case comes before the Board of Veterans' Appeal (Board) on appeal from rating decisions of the Columbia, South Carolina, VA Regional Office (RO). This case has previously come before the Board. Most recently, in September 2010, the matter was remanded to the agency of original jurisdiction (AOJ) for additional development. The case has been returned to the Board for further appellate review. The Veteran testified before the undersigned Veterans Law Judge in March 2008. A transcript of the hearing has been associated with the claims file. FINDING OF FACT The competent and probative evidence does not relate disability manifest by sleep disturbance to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. The competent evidence does not establish that disability manifest by sleep disturbance was manifest in service or is attributable to service. CONCLUSION OF LAW Disability manifest by sleep disturbance was not incurred or aggravated in active service, and may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in his possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board notes that the Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The December 2005, December 2006, and May 2008 letters told him to provide any relevant evidence in his possession. See Pelegrini, 18 Vet. App. at 120. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case). If any notice deficiency is present in this case, the Board finds that the presumption of prejudice on VA's part has been rebutted by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in March 2010. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. The claimant was also sent a letter regarding the appropriate disability rating or effective date to be assigned in March 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the Board notes the Veteran has been afforded a hearing before a Veterans Law Judge, at which time he presented oral argument in support of his claims of entitlement to service connection for disability manifest by sleep disturbance. The Veterans Law Judge asked specific questions directed at his assertions, to include the Veteran's service and post service treatment. In addition, the Veteran volunteered his treatment history and symptoms since service. Further, there has been no assertion that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board notes that effective August 23, 2011, VA amended its hearing regulations to clarify that the provisions regarding hearings before the agency of original jurisdiction do not apply to hearings before the Board. See 76 Fed. Reg. 52572 (Aug. 23, 2011). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). Criteria Service connection may be granted for disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. 38 C.F.R. §§ 3.303, 3.304 (2011). Service connection may also be granted for arthritis, cardiovascular disease, and an organic disease of the nervous system when manifested to a compensable degree within one year following discharge from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2011). VA is authorized to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117. To implement the Persian Gulf War Veterans' Act, VA added a regulation, 38 C.F.R. § 3.317. This regulation has changed a number of times during the Veteran's appeal. As originally constituted, the regulation established the presumptive period as not later than two years after the date on which the veteran last performed active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. Effective December 18, 2006, the period within which such disabilities must become manifest to a compensable degree in order for entitlement for compensation to be established was extended to December 31, 2011. See 38 C.F.R. § 3.317 (2011). Effective March 1, 2002, the statutes affecting compensation for disabilities occurring in Gulf War veterans were amended. See Veterans Education and Benefits Expansion Act of 2001, Public Law 107-103, 115 Stat. 976 (2001). Among other things, these amendments revised the term "chronic disability" to "qualifying chronic disability," and included an expanded definition of "qualifying chronic disability" to include (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B). The regulation concerning service connection for manifestations of undiagnosed illness now reads as follows: (a)(1) Except as provided in paragraph (c) of this section, VA will pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) Became manifest either 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 December 31, 2011; and (ii) By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. (2)(i) For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Irritable bowel syndrome; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) Any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. (ii) For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. (3) For purposes of this section, "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. (4) For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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. (5) A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. (6) A disability referred to in this section shall be considered service connected for purposes of all laws of the United States. (b) For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue (2) Signs or symptoms involving skin (3) Headache (4) Muscle pain (5) Joint pain (6) Neurologic signs and 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 (13) Menstrual disorders. (c) Compensation shall not be paid under this section: (1) If there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or 2) If there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) If there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. (d) For purposes of this section: (1) The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. (2) The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317. Adjudication of a veteran's Persian Gulf service connection claims must also include consideration of both the prior and the revised criteria. The General Counsel of VA has held that where a law or regulation changes during the pendency of a claim, the Board should first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the former and revised versions of the regulation. However, if the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. See VAOPGCPREC 3-2000 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Effective October 7, 2010, VA amended § 3.317(a)(2)(i)(B). The amendments clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and do not reflect an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in paragraph (a)(2)(ii). VA is removing this provision so VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). The amendment also revises § 3.317(a)(2)(ii) to add diabetes and multiple sclerosis as examples of chronic multisymptom illnesses of partially understood etiology and pathophysiology that are not considered medically unexplained chronic multisymptom illnesses. In addition, the Secretary has determined that there is no basis to establish presumptions of service connection for any disease, illness, or health effect, associated with service in the Southwest Asia theater of operations, discussed in the National Academy of Sciences' (NAS) report entitled Gulf War and Health, Volume 6, Physiologic, Psychologic, and Psychosocial Effects of Deployment-Related Stress (Volume 6). Pursuant to 38 U.S.C.A. § 1118, the Secretary must develop presumptions of service connection where there is a link between a health effect and exposure to "a biological, chemical, or other toxic agent, environmental or wartime hazard, or preventive medicine or vaccine known or presumed to be associated with service in the Southwest Asia theater of operations during the Persian Gulf War." VA interprets this statutory reference to address a relationship between the substance or hazard and the specific circumstance of service in the Southwest Asia Theater of operations during the Persian Gulf War. Volume 6 discusses the effects of stressors associated with deployment to any war zone, not just with deployment to the Southwest Asia Theater of operations during the Persian Gulf War. It also does not identify health effects associated with "a biological, chemical, or other toxic agent, environmental or wartime hazard, or preventive medicine or vaccine." Therefore, the Secretary has determined that the standard set forth in § 1118 has not been met and that presumptions based on NAS's findings in Volume 6 are not warranted. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49(1990). Analysis The Board finds the AOJ complied with the September 2010 remand. Additional records were obtained, to the extent possible, and the claim was readjudicated. In addition, the Board finds the March 2010 VA examination report and opinion, coupled with the December 2010 addendum, to be adequate. Consequently, the Board is able to proceed with a determination. The Veteran asserts entitlement to service connection for a sleep disorder, to include as due to undiagnosed illness. Having considered the evidence, the Board finds service connection is not warranted. The Board notes that while service connection may be warranted for "medically unexplained chronic multisymptom illness," such as sleep disturbance, a diagnosis of a chronic sleep disorder is not reflected in the record. Rather, the December 2010 VA addendum to the March 2010 VA examination report and a December 2009 social work assessment attribute complaints of sleep difficulty/insomnia to anxiety disorder, not otherwise specified. Thus, the special provisions pertaining to undiagnosed illnesses are not applicable to the Veteran's claim in this case. See 38 C.F.R. § 3.317 (2011). A determination as to whether the Veteran has current disability related to service requires competent evidence. The Veteran is competent to report sleep impairment. As a layman, however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that competence and credibility are to be distinguished. In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), the Federal Circuit stated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson reaffirms the holdings in Jandreau and Buchanan that VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. This does not mean, however, that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence. The Court has specifically indicated that lay evidence may establish the existence of a current disorder capable of lay observation, to specifically include varicose veins, tinnitus, and flat feet. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); and Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In that regard, the March 2010 VA examination report notes inconsistencies between the Veteran's report and review of treatment records and presentation. Regardless, competent and reliable evidence does not establish a chronic sleep disability related to in-service disease or injury. The Board notes that a February 2006 VA chronic fatigue syndrome examination report reflects complaints of difficulty falling back to sleep due to back pain, the February 2006 VA mental disorders examination report reflects complaints of difficulty falling back to sleep after awakening from nightmares, and the diagnosis entered in association with complaints to include difficulty falling asleep in a December 2009 social work assessment was anxiety disorder, not otherwise specified. The Veteran does not have a service-connected psychiatric disorder. In addition, and while December 2009 VA records reflect complaints of insomnia, in the December 2010 addendum to the March 2010 VA examination report, the examiner concluded that the Veteran does not have a disability manifested by sleep impairment, noting the Veteran's sleep problems are likely a manifestation of anxiety disorder, not otherwise specified. In this case, the competent evidence does not establish a chronic sleep disability due to in-service disease or injury. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the March 2010 VA examiner noted review of the claims file and together with the December 2010 addendum reflects the rationale for the opinion provided is based on objective findings, reliable principles, and sound reasoning. Such is far more probative than the Veteran's remote lay assertions. The Board notes that the opinion is not inconsistent with the December 2009 VA social work assessment or the contemporaneous evidence. In sum, the competent and reliable evidence does not establish a chronic disability due to sleep disturbance, to include as due to undiagnosed illness. Rather, difficulty falling asleep has been attributed to not only anxiety disorder but also back pain, and nightmares. In this case, the Board has accorded more probative value to the competent and probative March 2010 VA medical opinion and December 2010 addendum to the effect that the Veteran's symptoms are likely attributable to anxiety disorder, not otherwise specified, which is not at least as likely as not related to service. The examiner reviewed the claims file and provided a complete rationale for the opinion based on objective findings, reliable principles, and sound reasoning. The Board has accorded more probative value to the March 2010 VA examiner's opinions. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, the benefits sought on appeal are denied. ORDER Service connection for a disability manifest by sleep disturbance, to include as due to undiagnosed illness is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs