Citation Nr: 1300741 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-22 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a sleep disorder. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran had active service from November 1988 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 RO rating decision that denied service connection for a sleep disorder and for a back disorder. In November 2011, the Veteran testified at a Travel Board hearing at the RO; the transcript is of record. In an April 2012 decision, the Board granted service connection for major depressive disorder and in an April 2012 rating decision implementing the Board's determination, the RO assigned an initial 100 percent evaluation for the psychiatric disability, effective September 10, 2008. In the April 2012 decision, the Board also remanded the claims for entitlement to a sleep and back disorder to the RO for additional evidentiary development. The development has been completed and the claims have been returned to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection is in effect for major depressive disorder, which is evaluated as 100 percent disabling. 2. The evidence shows that the Veteran has not been diagnosed as having a sleep disorder; instead, the evidence shows that his sleep problems are manifestation of his service-connected major depressive disorder. 3. The preponderance of the medical evidence shows that the Veteran's back disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSION OF LAW 1. A sleep disorder was not incurred in or aggravated by service, nor is it proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. A back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper 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 in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were satisfied by a letter issued in November 2008, prior to the initial adjudication his claim. This letter advised the Veteran of the information VA would obtain, the information he was responsible for obtaining, the criteria for establishing service connection, and how VA determines both effective dates and disability ratings. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are of record, and consistent with the Board's April 2012 remand instructions, reports of VA examinations with adequate opinions have been obtained. VA has also associated with the claims folder VA treatment records, as have the private treatment records identified as relevant. As such, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Regulations 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for a "chronic disease," such as psychoses, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be 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, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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 and final 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."). Sleep Disorder: The Veteran contends that he has a sleep disorder that is related to service or to his service-connected psychiatric disability. He specifically reports that he was treated for sleep problems during service and essentially indicates that his sleep problems had their onset during service and continued since that time. The Veteran's service treatment records do not specifically show complaints, findings, or diagnoses of any sleep disorder. Post-service private treatment records show treatment for psychiatric disorders, including a major depressive disorder, as well as for complaints of sleep problems. An October 2009 evaluation report from J. J. Dabrowski, Ph.D., at the Neuropsychological Service of Tampa, shows that the Veteran reported that he had problems with sleep maintenance related to thoughts and dreams about dead people. He also complained that people talked to him when he was sleeping and that he had to sleep in different locations due to his homelessness. Dr. Dabrowski indicated that his impression was that the Veteran had a moderate to severe recurrent major depressive disorder and a personality disorder, not otherwise specified, with paranoid personality characteristics that the Veteran reported being present after experiences in the military in the 1980s. A February 2010 report from Mental Health Care, Inc., relates diagnoses of a schizoaffective disorder, as well as rule out schizophrenia, paranoids type, and PTSD. The examiner indicated that the behaviors and symptoms to support the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) were evidenced by audiovisual hallucinations, paranoia, sleeping problems, depression, isolation, racing thoughts, and appetite fluctuations. A May 2010 report from Mental Health Care, Inc., notes that the Veteran had been treated on an outpatient basis since February 2010 and that he was diagnosed with a psychosis, not otherwise specified, and rule out a schizoaffective disorder. Another May 2010 report from that facility, on the same day, relates diagnoses of a psychosis, not otherwise specified, and rule out a schizoaffective disorder. The examiner reported that he suspected that the Veteran had a schizoaffective disorder, bipolar type, because he did have some mood component as well as the psychosis. An October 2010 report from the Mental Health Care, Inc., reflects that the Veteran was seen for a medication review. The examiner reported that the Veteran admitted to hearing voices about twice a week. It was noted that the Veteran was vague about the contents, but stated that the episodes would last for a couple of hours. The Veteran also maintained that the voices sometimes told him to do bad things. The examiner reported that the Veteran admitted to auditory hallucinations and to paranoid ideations such as feeling that he was being followed, and that he stated that they had started ever since he got out of the military. A diagnosis was not specifically provided at that time. Pursuant to an April 2012 Board remand, the Veteran was afforded a psychiatric VA examination in May 2012 (with an addendum to that examination provided that same month) to obtain a responsive etiological opinion regarding his sleep disorder, to include as secondary to his service-connected major depressive disorder. The Veteran reported that he does not sleep well at night due to hallucinations. Indeed, he told the examiner that "people always come to me at night and talk to me ... and I talk to them ... they are all old friends ... they are dead now." He reported that when he attempts to shut out the voices, "they still will be whispering." The Veteran has resorted to listening to jazz music to silence these auditory hallucinations. Because of these hallucinations, he sleeps during the day. While sleep difficulties were noted, he was not diagnosed with any sleep disorder. The Veteran diagnosed with schizoaffective disorder, bipolar type. In the May 2012 addendum to the examination report, the examiner explained that the Veteran's sleep symptoms were a manifestation of his psychiatric disability. In support, the examiner cited an extensive review of the Veteran's service treatment records and observed at his July 1989 service separation examination, the Veteran affirmatively indicated that he did not have any "trouble sleeping." The Board acknowledges its consideration of the lay evidence of record, including the Veteran's report that his current sleep condition began in service. The Board further notes that the Veteran is competent to report the onset of his sleep symptoms. See Layno v. Brown, 6. Vet. App. 465, 469-71 (1994) (a layperson is competent to report symptoms based on personal observation when no special knowledge or training is required). The Veteran, however, lacks the necessary medical training and expertise to provide a competent medical opinion, which involves a complex medical determination. See Jandreau; see also Kahana. Therefore, his statements alone are not competent evidence of a sleep disability. In short, the evidence shows that despite specific evaluation to determine whether he has a sleep disability, and if so whether it is related to service or to a service-connected disability, the evidence shows that he has not been diagnosed as having a sleep disorder. The evidence instead shows that his sleep problems are a symptom of his psychiatric disability, which is evaluated as 100 percent disabling. Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. Thus, without competent evidence of a current diagnosis of a sleep disorder, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). As such, service connection must be denied. Back Disorder The Veteran contends that he has a back disorder that is related to service. He indicates that he sought treatment for back problems during service. He reports that he fell in a hole while carrying a backpack, that he was examined in the hospital, and that he was told that he had a "puncture in the spine." He maintains that he was put on light duty. The Veteran further notes that he was treated for back problems three or four times during service. The Veteran essentially indicates that his back problems had their onset during service and continued since then. The Veteran's service treatment records include a reference to a back problem on one occasion during service. A January 1989 treatment entry notes that the Veteran's chief complaints were right wrist pain and a back problem. The examiner solely addressed the Veteran's right wrist pain and the assessment was a sprained right wrist. The July 1989 separation examination report includes notations that the Veteran's spine and other musculoskeletal systems were normal. Post-service private treatment records show treatment for variously diagnosed back problems. For example, a May 2010 radiological report, as to the Veteran's thoracic spine, from Tower Diagnostic Centers notes that the clinical indication was for upper back pain. The impression was slight upper thoracic scoliosis. In addition, a November 2011 statement from E. Biggers, D.C., indicates that the Veteran was seen in November 2011 for back pain. Pursuant to the April 2012 remand, the Veteran was afforded a VA back examination in May 2012. The Veteran reported his in-service injury, and also asserted that he had been kicked in the back a few times by other servicemen while in-service. He reported that since service, he has had recurrent thoracolumbar pain that has increased in severity. The Veteran stated that after service, he worked in construction, whereupon he experienced a series of injuries to his back. These injuries included a fall into a 6-foot ditch, falling onto a pipe, and falling onto a shovel - no worker's compensation claims were filed. Unrelated to his post-service employment in construction, he also indicated that he had been involved in two motor vehicle accidents (MVA). During the first MVA, he hit a rail, and in the other, he was hit on the side by a driver who ran a red light - there is no history of any treatment at a hospital, and according to the examiner, it is unclear whether there was any history of trauma to his thoracolumbar spine as the result of these MVAs. The Veteran was diagnosed with mild dextroscoliosis of the thoracic spine, diffuse mild degenerative joint disease, severe disc space narrowing at L5-S1, and pars defect at L5-S1 without significant spondylolisthesis. The examiner opined that the Veteran's thoracolumbar condition was not caused by, or the result of military service. In making this determination, the examiner noted that the Veteran's service treatment records were silent for any treatment for or diagnosis of any back condition. He further noted that the Veteran had an extensive post-service history of heavy physical labor jobs whereupon, per the Veteran's history, he incurred multiple accidents to his thoracolumbar spine. The examiner stated that the Veteran's current diagnosis of degenerative joint disease and degenerative disc disease of the lumbar spine is age-related, and his left sided S1 lumbar radiculopathy is secondary to his degenerative disc disease of the lumbar spine. Moreover, the examiner noted that even taking the Veteran's history of back injury in service, the medical records do not support any chronic thoracolumbar disability/condition since his military discharge. Significantly, the examiner noted that the Veteran was able to perform heavy physical labor jobs for years after his military discharge. The Veteran testified that he had sought treatment for his back pain less than a year after service; specifically he indicated that he could no longer lift weights or go long distances. However, even though the record was held open for 60 days following his travel board hearing to afford the Veteran the opportunity to submit additional evidence that may help substantiate his back disorder claim, the evidence submitted failed to show that he received treatment within the year following discharge or that he was physically limited from lifting weights or going long distances. The Board acknowledges its consideration of the lay evidence of record, including the Veteran's report that his back condition began in service when reported a back problem. The Board further notes that the Veteran is competent to report the onset of his back condition. See Layno v. Brown, 6. Vet. App. 465, 469-71 (1994) (a layperson is competent to report symptoms based on personal observation when no special knowledge or training is required). However, the service treatment records contradict any report of experiencing a back disorder since service. As indicated above, the Veteran reported at the time of his service separation that he had no history of recurrent back pain, (January 1989 Report of Medical History), and on examination, he showed no relevant abnormality (January 1989 Report of Medical Examination). Moreover, the service separation examination report reflects that the Veteran complained of having depression or excessive worry, chronic or frequent colds, hay fever and cramps in his legs. The Federal Circuit held in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Id. at 1336. As a finder of fact, though, the Board may weigh the absence of contemporaneous records when assessing the credibility of the lay evidence. In this role, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton, 21 Vet. App. at 38; Caluza, 7 Vet. App. at 511. In this case, the Board finds the Veteran's report of having a continuity of back problems since service is inconsistent with the evidence of record and thus not credible. By contrast, the Board finds the VA examiner's opinion more probative than the one offered by the Veteran because VA examiner's opinion is well reasoned, is based on a review of the Veteran's medical history and the results of a clinical evaluation, and in light of the VA' examiner's expertise, based on her education, training and experience. As such, service connection must be denied. ORDER Service connection for a sleep disorder is denied. Service connection for a back disorder is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs