Citation Nr: 1304385 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-06 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased rating for bilateral pes planus, currently rated 10 percent disabling. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to May 1982. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2008 rating decision, the RO denied entitlement to an increased rating for bilateral pes planus. A notice of disagreement was filed in March 2009, a statement of the case was issued in December 2009, and a substantive appeal was received in February 2010. In an October 2010 rating decision, the RO denied entitlement to service connection for sleep apnea. A notice of disagreement was filed in June 2011, a statement of the case was issued in September 2012, and a substantive appeal was received in September 2012. The issue of entitlement to an increased rating for pes planus is REMANDED to the RO via the Appeals Management Center (AMC). The Veteran will be advised if further action is required on his part. FINDING OF FACT Sleep apnea was not manifested during service, and is not otherwise related to the Veteran's active service. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in May 2008 pertaining to his bilateral pes planus claim and was sent a letter in July 2010 pertaining to his sleep apnea claim. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Such letters also explained what type of information and evidence was needed to establish a disability rating and effective date pertaining to his service connection claim, and an effective date pertaining to his increased rating claim. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of relevant service and post-service treatment records and providing an examination or medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA is obliged to provide an examination in a service connection claim when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) interpreted the provisions of 38 U.S.C.A. § 5103A(d)(2) as requiring an examination in service connection claims when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The RO did not provide a VA examination or medical opinion with regard to the sleep apnea claim. As discussed below, there is competent evidence of current sleep apnea. The only evidence that this disability may be related to service consists of the Veteran's reports that symptoms of the disorder began in service. As will also be discussed in detail below, the Veteran's reports have been found to not be credible. Absent credible evidence that the disability may be related to service, an examination or opinion is not necessary. See McLendon v. Nicholson, at 82 (noting that a Board finding that a veteran's report of in-service injury was not credible would have vitiated the duty to provide an examination); see also 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 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). The evidence of record contains the Veteran's service treatment records and VA outpatient treatment records. The Board otherwise concludes that no available outstanding evidence has been identified pertaining to the claims. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to these claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Service connection requires competent and credible 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 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. § 1131; 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element 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 adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). 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). Service treatment records are negative for complaints of or a diagnosis of sleep apnea. On an April 1982 Report of Medical History completed for separation purposes, the Veteran checked the 'No' box for 'frequent trouble sleeping.' An April 1982 Report of Medical Examination does not reflect any defects or diagnoses. In March 2010, the Veteran sought VA treatment reporting trouble with his sleep for the prior 10 years. He reported falling asleep quickly but waking up every 30 to 60 minutes, often gasping for air or choking. He does not have a regular bed partner but people have told him he snores. His former wife described apnic spells. He reported daytime fatigue and regular naps to recover. He will fall asleep for 10 to 15 minutes when sitting in a chair watching television. The assessment was sleep apnea, likely based on history. In July 2010, the Veteran underwent a VA sleep study and mild obstructive sleep apnea was diagnosed. Post-service medical evidence shows that sleep apnea was diagnosed over 21 years after separation from service. Based on the record, the Board must conclude that the clear preponderance of the evidence is against a finding that the Veteran's sleep apnea manifested during service or that it is otherwise related to his active service. The Veteran asserts that sleep apnea should be service-connected, because he had disrupted sleep patterns during service on alert status. Such statements offered in support of his claim; however, contradict his specific denial of sleep problems on separation from service, and his report to the March 2010 VA examiner that he had only suffered from sleep problems for the prior 10 years. Consistent with the March 2010 report, he filed a claim for service connection in December 2002 for an unrelated disability; however, he did not claim entitlement to service connection for a sleep disability. This suggests that the Veteran did not have a sleep disability or any symptoms thereto that he believed were due to service. His contemporaneous statement offered at the time of separation from service and his statement offered for the purpose of obtaining treatment are more credible than his statement offered over 21 years after separation from service in support of his compensation claim. Indeed given the contradictory statements and record, his reports of in-service onset are not deemed credible. The record does not contain any other evidence suggesting that the current sleep apnea is related to service. There is no medical opinion to that effect and no other evidence of a continuity of symptoms beginning in service. As sleep apnea was not shown in service, and the records contain no competent and credible evidence of a causal link between current sleep apnea and active service; the preponderance of the evidence is against the claim of service connection. Reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for sleep apnea is denied. REMAND The Veteran's most recent examination for pes planus was in June 2008. The examiner did not have access to the claims file and the examination report did not include all of the findings needed to rate the disability in accordance with the rating schedule (for instance whether there were characteristic callosities). Since that examination, the Veteran has received regular VA outpatient treatment for complaints of foot pain (although he also has a significant diabetic foot disability). The veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Court has held that TDIU is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). Accordingly, the appeal is REMANDED for the following: 1. The Veteran should be afforded a current VA examination to evaluate the severity of symptoms associated with bilateral pes planus. The examiner should review the claims file, including any relevant records in Virtual VA. The examiner should report whether pes planus is manifested by: objective evidence of marked deformity, pain on manipulation and use accentuated, indications of swelling on use, characteristic callosities, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, symptoms not improved by orthopedic shoes or appliances. The examiner should also comment on whether pes planus would prevent gainful employment for which the Veteran would otherwise be qualified. 2. The agency of original jurisdiction should review the examination report to insure that it contains the specific findings sought in this remand. 3. If the examination report or other evidence suggests any relevant treatment since July 2012; records of the treatment should be obtained. 4. If there is evidence that pes planus causes unemployability (including statements by the Veteran), ask the Veteran to complete a formal application for that benefit; and if he does not meet the percentage requirements for TDIU; then refer the claim to VA's Director of Compensation and Pension for consideration in accordance with 38 C.F.R. § 4.16(b) (2012). 5. If the benefits sought on appeal are not fully granted, a supplemental statement of the case should be issued. The appeal should then be returned to the Board, if otherwise in order. The Veteran 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs