Citation Nr: 1301693 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 08-10 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness. 2. Entitlement to service connection for Hashimoto's thyroiditis, as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The appellant served on active duty from February to October 1987 and from November 1990 to September 1991. This appeal to the Board of Veterans' Appeals, hereinafter the Board, arose from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, Tennessee, that, in pertinent part, denied the appellant's claims for entitlement to service connection for a sleep disorder and a thyroid disorder. In conjunction with his claim, the appellant provided testimony before the undersigned Veterans Law Judge at a videoconference hearing in October 2012. A transcript of that hearing was prepared and has been included in the claims folder for review. The issue of entitlement to service connection for Hashimoto's thyroiditis, as due to ionizing radiation exposure, 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. FINDINGS OF FACT 1. The Veteran had military service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran's sleep problems are symptoms of her service-connected PTSD; she does not have a separate disability exhibited by sleep problems. CONCLUSIONS OF LAW Chronic disability exhibited by sleep problems (other than PTSD) was not incurred or aggravated in service or due to an undiagnosed disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 4.14 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA 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. 2012) defined VA's duty to assist a 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, 3.326(a) (2012). Under the VCAA, VA 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. 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). In a pre-adjudication letter dated in May 2006, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. This letter also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to sustain a claim for service connection. In addition, the letter met the notice requirements set out in Dingess. Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). 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). The Board observes that the Veteran's service treatment records, and VA medical records and private medical records have been obtained. The Veteran was provided with a VA examination in April 2010 in connection with his claim. These examinations, along with the Veteran's statements and treatment records, are sufficient for deciding the claim on appeal. 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. VA provided the Veteran the opportunity to have a hearing. The appellant testified before the undersigned Veterans Law Judge in October 2012. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned Veterans Law Judge explained the evidence necessary to establish the claim for service connection, and inquired about outstanding medical evidence and dates of treatment. Neither the Veteran nor her representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) extant at the time of the hearing. Since there is no indication that any failure on the part of VA to provide additional notice or assistance that would reasonably affect the outcome of this case, the Board finds that any such failure is harmless and will proceed with the adjudication of the Veteran's claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Service Connection for sleep disorder Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Id. Under § 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (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). The provisions concerning continuity of symptomatology do not relieve the requirement that there be some evidence of a nexus to service. For service connection to be established by continuity of symptomatology there must be competent medical or other evidence that relates a current condition to that symptomatology. See Savage 10 Vet. App. at 495-98 (1997). Persian Gulf Veteran is defined as a Veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f) (West 2002); 38 C.F.R. § 3.317(d) (2012). Service personnel records reflect that the Veteran had active service in Iraq from January 14, 1991 to July 26, 1991. A 'qualifying chronic disability' includes (a) 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. See 38 C.F.R. § 3.317(a)(2); see also 75 Fed. Reg. 61995-97 (2010). Under 38 U.S.C.A. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a 'qualifying chronic disability' that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective December 29, 2011, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 76 Fed. Reg. 81834-81836 (December 29, 2011). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a),(b). The term 'objective indications of a qualifying chronic disability' include both 'signs,' in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C.A. § 1117(g) . It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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 claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail. The Court has also stated, 'It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.' Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In this case, the Veteran seeks entitlement to service connection for a sleep disorder. She has contended that she has a sleep disorder that is related to service. At her hearing, the Veteran indicated that she had vivid dreams and difficulty falling asleep, awakening four to five times per night, even when taking sleep medication. When asked if she thought it was a separate disorder from her PTSD, the Veteran indicated that she felt it would be considered an undiagnosed illness based on her service in the Persian Gulf. Service treatment records do not reflect any treatment or diagnosis for a sleep disorder. On her separation Report of Medical History, the Veteran noted that she did not have any trouble sleeping. VA medical records reflect that the Veteran has consistently reported sleep difficulties in conjunction with her psychiatric treatment (see VA medical records dated in June 2006, September 2009, and January 2011). She has indicated that her sleep problems were related to nightmares about active duty. None of these records reflect a diagnosis of a sleep disorder separate from the symptoms associated with her PTSD. In April 2010, the Veteran was provided with a VA examination. She reported developing sleep disturbance while deployed to Southwest Asia. The onset began in the first weeks in country, coinciding with frequent chemical attacks and SCUD missile alerts. Symptoms continued for the duration of deployment due to night duty and hospital work requirements. Her sleep disturbance was characterized with frequent awakening, often with frightening dreams. She had no history of snoring or sleep apnea episodes, and she had not had an evaluation for a sleep disorder other than as part of her PTSD. At the time of the examination, the Veteran reported that she was sleeping four hours per night. The examiner opined that it was more likely than not that her sleep disorder was secondary to her service-connected PTSD. In addition, the examiner concluded that he did not find any evidence that the Veteran had a separately disagnosable sleep disorder unrelated to her PTSD. In December 2010, the Veteran was scheduled for a VA examination, in part, to determine whether the Veteran had a sleep disorder separate from her PTSD. The examiner noted that no new examination was actually provided with regard to her sleep disorder, as the Veteran did not have a sleep disorder which was separate from her service-connected PTSD. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. the VA examiner indicated that the Veteran's sleep problems were part of the symptomatology of the Veteran's service-connected PTSD. This opinion included a review of the Veteran's history and a thorough rationale as to why the Veteran's tinnitus is not related to his active duty service. As such, this evidence has great probative value in this case. In this regard, the Board notes that the Veteran has contended on her own behalf that her sleep disorder is a separate disorder from her PTSD. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ('the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation'). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, the Veteran is competent to report her symptoms of sleep problems. As she has consistently reported issues with nightmares and awakening several times per night throughout the appeals period, her contentions are considered credible. However, the Board finds that the Veteran's contentions regarding the etiology of her sleep problems conditions are not competent. While the Veteran is competent to describe these ongoing symptoms, she is not shown to have the expertise to diagnose disability or attribute current symptoms to a particular disability. Her claims to this effect are outweighed by the competent and probative April 2010 VA medical examiner's findings. The Board attaches the most probative value to this opinion as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). In addition, there are no medical records reflecting a diagnosis of a sleep disorder; in fact, the Veteran has reported that her sleep problems are related to disturbing dreams of active duty. She has not provided any contentions that she has had any apnea or snoring. Based on the foregoing, the Board finds that entitlement to service connection is not warranted for a separately diagnosed sleep disorder, or as an undiagnosed illness, as any sleep problems have been related by competent medical evidence to her service-connected PTSD. In summary, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a sleep disorder separate and distinct from her service-connected PTSD. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. The Board finds that, based upon the evidence of record, service connection for a sleep disorder as a separated disability, distinct from her service-connected PTSD, is not warranted. ORDER Service connection for a sleep disorder is denied. REMAND The Veteran contends that she has Hashimoto's disease, as a result of exposure to ionizing radiation while on active duty as an X-ray technician. Specifically, she asserted that, while serving in Desert Storm at the 912th Surgical Hospital, it was necessary to utilize a portable X-ray machine, which was unshielded. The only protection provided to the Veteran was a lead apron. She claims that during job training at Fort Jackson, she was told that her radiation badge showed a larger than normal exposure reading. She also contended that she may have been exposed to radiation in the time following an explosion at Camp Doha, in Kuwait, where she was stationed in July 1991. She has contended that, after the explosion, she remained at the camp for another two weeks. Her service personnel records confirm that the Veteran was stationed at the 912th Hospital as an X-ray specialist while serving in Desert Storm from January to July 1991. The claims folder contains spreadsheets figures that are apparently dose estimates provided by the Commander of the 912th Surgical Hospital. It cannot be determined from the record whether these were requested through the Department of Defense. The letters requesting the Advisory Opinion only refer to the fact that the Veteran was an X-ray technician, but does not mention the potential exposure to radiation from the explosion at Doha in 1991. The Board notes that the Veteran submitted an article reflecting information that there was some possibility of exposure to uranium after the explosion. Accordingly, the case is REMANDED for the following action: 1. Request all available records regarding the Veteran's asserted exposure to radiation (including requesting the Occupational Exposure to Ionizing Radiation (DD Form 1141, if maintained) during service. 2. Forward the records, including the DD Form 1141, if available, the spreadsheet reflecting radiation exposure, and other evidence of record reflecting the Veteran's contentions of radiation exposure to the appropriate service department (Commander U.S. Army Medical Command Attn: MCPO-SA 2748 Worth Road, Suite 25 Ft. Sam Houston, TX 78234-6025) or other appropriate agency for a dose estimate. 3. If that dose estimate is significantly different than the previously reported 000.298 rem, forward the claims file to the Under Secretary for Benefits, for an amended opinion regarding the etiology of Hashimoto's thyroiditis. 4. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs