Citation Nr: 1236331 Decision Date: 10/19/12 Archive Date: 11/05/12 DOCKET NO. 10-21 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for periodic limb movement and restless leg syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from January 1980 to January 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2009 rating decisions issued by the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO). The Board initially notes that in the Veteran's June 2009 claim, he requested direct service connection for sleep apnea, and referenced his bilateral leg twitching. The RO characterized his sleep apnea claim as secondary to his service-connected reactive airway disease. The Veteran has adamantly stated that he is not requesting entitlement based on a secondary basis. As such, the issue has been recharacterized as noted on the preceding title page. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDING OF FACT The evidence reasonably shows that the Veteran's periodic limb movement/ restless leg syndrome (bilateral leg disorder) had its incurrence during active service. CONCLUSION OF LAW The criteria for service connection for periodic limb movement/restless leg syndrome have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). It applies in this case. However, inasmuch as this decision grants the benefits sought, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Analysis At the outset, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence that is relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that '[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'). 'Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.' Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ('a legal concept determining whether testimony may be heard and considered') and credibility ('a factual determination going to the probative value of the evidence to be made after the evidence has been admitted'). Service connection may also be granted for a disease first 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). 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran contends that he has a bilateral leg disorder which began during his active duty and has persisted since that time. A July 1998 service treatment record documents the Veteran's complaints of bilateral leg twitches and difficulty sleeping for the past 7 years. His wife had noticed his legs twitch while he slept. He was diagnosed with muscle twitches, which were attributed to a possible decrease in potassium levels versus dehydration. The Veteran was counseled to start eating a diet high in potassium. There are no other references in the service treatment records pertaining to leg twitches. On January 2009 VA consultation, the Veteran indicated that he continued to experience leg sensations at night such that he felt the need to move his ankles. He indicated that while on active duty he was told to take potassium for his leg twitches but that did not help him. Possible periodic limb movement syndrome was assessed. A formal sleep study was recommended. Post-service VA treatment records, as well as a February 2009 sleep study conducted at SomniTech, Inc. Sleep Disorder Center, confirm that the Veteran is being treated for periodic leg movement disorder/restless leg syndrome. In October 2009, the Veteran's primary care provider stated that he had reviewed a copy of the July 1998 service treatment record referencing symptoms of twitching of legs and difficulty sleeping. He indicated that although the Veteran had not been tested with a sleep study, those symptoms would be compatible with his current diagnosis of periodic limb movement disorder. The Board notes that the Veteran has reported continued symptoms in his bilateral lower extremities since his military service. He is competent to report such findings. Additionally, the Veteran's primary care provider has noted, after reviewing the Veteran's July 1998 service treatment record that references the Veteran's complaint of bilateral leg twitching, that such is compatible with the current diagnosis of periodic limb movement disorder. As the examiner reviewed the record and performed a physical evaluation of the Veteran, such lends significant probative weight to his findings. Thus, the Veteran had symptoms in service that are compatible to those manifested during the appeal period. His competent and credible testimony, and an equally competent and credible statement from his wife, indicates that such symptoms have been continuous since service. Thus, on the basis of continuity, service connection is warranted for a bilateral leg disorder. In reaching this conclusion, the benefit of the doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for periodic limb movement/restless leg syndrome is granted, subject to governing criteria applicable to the payment of monetary benefits. REMAND Unfortunately, a remand is required with regards to the Veteran's sleep apnea claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2011). The Veteran asserts that he has sleep apnea that has been manifested since his period of active service. Specifically, he indicated that he would wake up in the mornings with headaches and fatigue, but did not identify those symptoms as being indicative of sleep apnea. He stated that his wife would wake him up at night and tell him to turn on his side because he had stopped breathing or he was snoring loudly. A lay statement from his spouse dated in July 2009 shows that he had experienced problems sleeping (snoring, gasping for air, and lethargy) since 1992. She indicated that the symptoms became worse in January 1995 and had continued to the present. A July 1998 service treatment record documents the Veteran's complaints of difficulty sleeping for the past 7 years. There are no other references in the service treatment records pertaining to difficulty sleeping. Post-service, on January 2009 VA pulmonary consultation, the Veteran reported sleep problems since the military. He indicated that when he was in the military he just thought his symptoms were caused by sleep deprivation. However, the symptoms persisted after his discharge from service. He described snoring and had been told by his wife that his breathing stops during the night. Possible obstructive sleep apnea assessed, and a formal sleep study was recommended. Post-service VA treatment records, as well as a February 2009 sleep study conducted at SomniTech, Inc. Sleep Disorder Center, confirm that the Veteran is being treated for obstructive sleep disorder. A VA examination report dated in July 2009 reflects a diagnosis of obstructive sleep apnea. The examiner opined that the obstructive sleep apnea was not caused by or a result of the Veteran's service-connected restrictive airway disease, reasoning that these were two separate and distinct conditions. The Board finds that this opinion is inadequate with regard to direct service connection. Indeed, the examiner did not provide an opinion as to whether the current obstructive sleep apnea was manifested during service in light of the aforestated lay statements from the Veteran and his spouse. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). As such, on remand, the Veteran should be afforded another VA examination to determine whether his currently diagnosed obstructive sleep apnea is etiologically related to his active service, to include the July 1998 record that documents his complaints with difficulty sleeping. Finally, as this matter is being remanded for the reasons set forth above, the claims file should be updated to include VA treatment records compiled since February 2010. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following: 1. The RO/AMC shall attempt to obtain VA medical treatment records pertaining to the Veteran's sleep apnea dated from February 2010 onward. Any additional pertinent records identified by the Veteran during the course of this remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Thereafter, schedule the Veteran for an examination by an appropriate medical specialist to determine the nature and extent of his sleep apnea. The claims file, and a copy of this remand, will be reviewed by the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. After considering the Veteran's statements and history of symptoms and treatment, and after identifying all manifestations of the sleep apnea, the examiner should: Provide an opinion as to whether there is at least a 50 percent probability (at least as likely as not) that the Veteran has sleep apnea that had its onset in active service or is otherwise the result of disease or injury in service, to include the noted in-service complaint in July 1998. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for sleep apnea in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 3. Thereafter, the AMC/RO should re-adjudicate the Veteran's claim of service connection in light of all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs