Citation Nr: 1306960 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 04-32 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for insomnia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty (AD) from April 1982 to February 1987. She had additional service in the Naval Reserves from January 1988 to December 1995, including confirmed active duty for training (ACDUTRA) in August 1988 and September 1992. This appeal to the Board of Veterans' Appeals (Board) is from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As support for her claim, the Veteran testified at a hearing in June 2008 at the Board's offices in Washington, DC (Central Office hearing) before the undersigned Veterans Law Judge (VLJ). The Board remanded her claim in May 2009 and again in April 2011 for further development. FINDINGS OF FACT 1. The Veteran's insomnia did not manifest during her active military service and is not otherwise shown to be related or attributable to her service, including to any period of ACDUTRA. 2. There is competent and credible evidence indicating her insomnia is secondary to her depression, but her depression is not a service-connected disability, so not shown to be related or attributable to her military service. 3. She does not have sleep apnea to otherwise account for her insomnia. CONCLUSION OF LAW The Veteran's insomnia is not shown to be the result of disease or injury incurred in or aggravated by her active military service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In deciding this claim, the Board has reviewed all of the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, so both the lay and medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Conversely, the preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that 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. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). All notice under the VCAA should generally be provided prior to an initial 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) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (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. Notifying the claimant of what evidence is necessary to substantiate the claim under U.S.C.A. § 5103(a), the first notice element in Quartuccio, requires notice of these five elements. See id. at 486; Quartuccio, 16 Vet. App. at 187. Here, prior to the initial rating decision in this matter, an April 2003 letter informed the Veteran of the types of evidence she could submit in support of her claim and provided specific examples of such evidence. Further, in accordance with the Board's July 2009 remand directive, letters dated in August 2009 and December 2009 informed the Veteran of the requirements for establishing entitlement to service connection on a direct and secondary basis, and provided notice of the Veteran's and VA's respective responsibilities for obtaining evidence on her behalf. Although these letters were not sent prior to initial adjudication of the Veteran's claim, the Veteran had ample opportunity to respond with additional argument and evidence, and indeed additional argument and evidence was submitted following receipt of these letters, before her claim was subsequently readjudicated and supplemental statements of the case (SSOC's) issued in January 2011 and December 2012, thereby rendering the delay in timing nonprejudicial. See Mayfield, 499 F.3d at 1323. The VCAA notice letters did not provide notice regarding the degree of disability or the effective date. However, as service connection for insomnia has not been established, any question as to the "downstream elements" of the degree of disability and the effective date to be assigned is rendered moot, as these elements only pertain to service-connected disabilities. See Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (characterizing the degree of disability and effective date as "downstream" issues) (citing Evans v. West, 12 Vet. App. 396, 399 (1999)). Thus, lack of notice of these last two elements did not affect the outcome of this claim and consequently no prejudice exists. See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005) (holding that an error is prejudicial when it injures an interest protected by law such that the error affects "the essential fairness of the adjudication," and that a demonstration that an error did not affect the outcome of a case establishes lack of prejudice); rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, the duty to notify has been satisfied. See id. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Veteran's service treatment records and service personnel records (including those pertaining to her service in the Naval Reserves), VA medical records, and Social Security Administration (SSA) records are in the file. The Board's May 2009 remand directives in this regard (directing the RO/AMC as the agency of original jurisdiction (AOJ) to make appropriate efforts to obtain the Veteran's SSA records and additional VA treatment records) have been satisfied. Private medical records she identified as also potentially pertinent have been obtained, as well, to the extent possible. In its May 2009 remand directives, the Board also instructed the RO or Appeals Management Center (AMC) to determine any ACDUTRA or inactive duty training (INACDUTRA) service from 1988 to 1995. Accordingly, the AMC made considerable efforts to ascertain all such periods of ACDUTRA or INACDUTRA and to obtain any outstanding clinical records from that claimed service, and these efforts were appropriately documented in the claims file. 38 C.F.R. § 3.159(c)(2), (c)(3), and (e)(1). The AMC received only negative responses when it contacted the National Personnel Records Center (NPRC), however, and other appropriate authorities to try and obtain these records. The Board finds the RO/AMC made sufficient attempts to comply with the Board's remand directive in this regard, and that further efforts would be futile. See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.156(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that further efforts to obtain them would be futile, and that such is the case when the Federal department or agency advises VA the requested records do not exist or that the custodian does not have them). Notably, as discussed in more detail below, the Veteran does not argue that her insomnia was directly incurred in or aggravated by a period of ACDUTRA or INACDUTRA, but rather that it is secondary to her chronic fatigue syndrome (CFS) and/or depression. Thus, further efforts to verify other periods of ACDUTRA or INACDUTRA, or to obtain any hypothetically outstanding records associated with such service, are unwarranted. Significantly, there is no indication that any such records even exist that would be relevant. The Veteran has not identified any other outstanding records that she wanted VA to obtain or that she believed were relevant to her claim. Therefore, the duty to assist has been satisfied with respect to obtaining relevant records on her behalf. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, in accordance with the Board's April 2011 remand directives, an appropriate VA compensation examination was provided in May 2011. The Board finds that the VA examination is adequate for the purpose of making a decision on this claim. The examiner reviewed the claims file and medical history, performed a personal examination of the Veteran, recorded the clinical findings, and provided rationale for the opinion stated that, notably, is consistent with other evidence of record indicating the Veteran's insomnia is secondary to her depression and that she does not have sleep apnea. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully informed one). There has not been any attribution of her depression, however, even if causing her insomnia, to her military service. Consequently, even though the insomnia is secondarily related to her depression, it has not also been shown to, in turn, be related to her military service by way of service-connected disability since the depression is not currently recognized as a service-connected disability. The VA examiner also had the Veteran undergo a sleep study and pulmonary function test (PFT) in December 2012, both of which were essentially within normal limits. Although the examiner did not provide further commentary after the sleep study was performed, further opinion was unnecessary since the sleep study was unremarkable for any pertinent defect like sleep apnea, and thus could only at most confirm the examiner's finding that the Veteran's sleep difficulties are attributable to some other cause such as her depression. Accordingly, VA's duty to assist with respect to obtaining a VA examination and medical nexus opinion has been met. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of her claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). There is no indication that any defect in the notice or assistance provided affected the outcome of this claim or compromised the "essential fairness of the adjudication," and no such defect has been alleged. See Mayfield, 19 Vet. App. at 116. Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least explaining how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review of this claim. In obtaining the additional records mentioned, or at least putting for the required efforts to, there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Analysis The Veteran is claiming entitlement to service connection for insomnia, but for the following reasons the Board finds that service connection is not warranted. As already alluded to, she does not allege that her insomnia was directly incurred in or aggravated by her active military service, including during any period of AD, ACDUTRA or INACDUTRA, but rather claims instead that it is secondary to other disabilities that she argues are service connected, so related to her military service. Specifically, in her March 2003 claim, she stated, in relevant part, that her insomnia "may not be a part of [her] military records," but was "related and caused by some of the major conditions resulting from [her] military service." Similarly, during her June 2008 hearing before the Board, her representative stated there were only certain disabilities being claimed as directly related to the Veteran's service, and that the others - which necessarily would include insomnia as it was not among the disabilities alleged to be directly related to service - were co-morbid with or secondary to her chronic fatigue syndrome and depression. See Hearing Transcript at pages 8 and 18. This argument is in keeping with the Veteran's statement in her March 2003 claim for benefits. Thus, she essentially claims that service connection for insomnia is warranted on a secondary, rather than direct, basis. Service connection may be established on a secondary basis for disability that is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service[-]connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." So claims for secondary service connection also are premised on the notion that a service-connected disability, even if not causing, is nonetheless aggravating the condition being claimed. Allen v. Brown, 7 Vet. App. 439, 448 (1995). See also 38 C.F.R. § 3.303(b). But in this latter circumstance, even if shown to be true, compensation is limited to the additional disability resulting from the aggravation, so only for what exists over and beyond what existed before. So in order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. In this particular case at hand, however, the Veteran does not have any disabilities for which service connection has been established. The Board found in its April 2011 decision that new and material evidence had not been submitted to reopen previously denied service-connection claims for chronic fatigue syndrome and depression, among other disorders. Absent an appeal, or some other exception to res judicata, that decision is final and binding on the Veteran based on the evidence then of record. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1100 (2012). Consequently, her derivative claim of entitlement to service connection for insomnia as secondary to chronic fatigue syndrome or depression does not revive those previously denied claims as they were already adjudicated by the Board in the same decision that remanded her insomnia claim. Thus, because her chronic fatigue syndrome and depression have not been determined to be service-connected disabilities, service connection for insomnia as derivative or secondary to these disorders cannot be established as a matter of law. See 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 448. To the extent the record raises the issue of whether she has a sleep disorder secondary to restrictive airway disease or allergies, petitions to reopen claims for these disorders were also denied in the Board's April 2011 decision. Thus, service connection on a secondary basis for insomnia, including sleep apnea (which the record does not establish she even has), also is unwarranted. The Board also has considered whether service connection may be established on a direct-incurrence basis. In this regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, or legitimately questionable, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that in order to establish entitlement to direct service connection, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With regards to the Veteran's reserve service, active military service is a prerequisite to service connection and has been defined to mean "active military, naval, or air service." 38 U.S.C.A. § 101(2), (24) (West 2002); 38 C.F.R. § 3.6(a) (2012). The term "active military, naval, or air service" includes: (1) AD; (2) any period of ACDUTRA during which the claimant was disabled or died from a disease or an injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the claimant was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty. Id. See also Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). The presumption that certain conditions manifested to the required compensable degree within a specified time after service, usually one year, and the presumptions of soundness and aggravation do not apply to ACDUTRA and INACDUTRA service, however, only to AD. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). The Veteran's service treatment records (STRs) for her period of active service do not reflect diagnoses, treatment, or complaints of insomnia or difficulty sleeping. She denied a history of frequent trouble sleeping in the February 1987 report of medical history at separation. Moreover, as already explained, she does not in any event allege that her insomnia initially manifested or incepted during her active service or that it is directly related to her service. There also is no suggestion her insomnia is related to a period of ACDUTRA, recognizing that, as a disease, not injury, it could only be related to her ACDUTRA, not also her INACDUTRA. Indeed, to the contrary, she denied a history of trouble sleeping in reports of medical history during periodic reserve examinations dated in April 1989 and August 1991. Although she did report trouble sleeping in a March 1993 periodic reserve examination, she has not alleged and there is no other evidence suggesting that her trouble sleeping first manifested during or was otherwise directly incurred in or aggravated by a period of ACDUTRA. Accordingly, the Board finds that her insomnia did not manifest during active military service of any sort, so including any period of ACDUTRA. While her insomnia did not manifest in service, service connection still may be established if the evidence of record nevertheless shows this condition was incurred in or aggravated by her service. See 38 C.F.R. § 3.303(d). There is no such indication, however. The Board finds that a relationship between her insomnia and active military service has not otherwise been shown. A May 1998 VA treatment record reflects that she reported irregular sleep, but it was doubted that she had sleep apnea and, as already pointed out, it since has been confirmed, based on the results of her sleep study, that she most certainly does not. So sleep apnea has been ruled out, clinically. In September 1998, she was seen at a private sleep clinic. It was suspected that she had a phase delay syndrome and insomnia associated with a mood disorder. The treating physician considered sleep apnea another possibility, but did not believe it was likely that the Veteran had this disorder. A sleep study performed at the time did not yield a diagnosis of sleep apnea. Rather, in the report issued the following day, the physician simply noted the Veteran probably had a circadian phase delay syndrome, and it was recommended she adopt a normal sleep schedule. During her May 2011 VA compensation examination, she reported intermittent night sweats and daytime hypersomnolence. She reported that she experienced a lot of stress that resulted in anxiety and difficulty sleeping. After evaluating her and reviewing the claims file, the examiner concluded the Veteran likely had insomnia secondary to depression. The examiner also diagnosed "possible" sleep apnea and ordered a sleep study and PFT to either confirm or rule out this diagnosis. The sleep study was performed in December 2012. According to the polysomnography report, although the Veteran had two obstructive apnea events, no specific abnormality was noted. The interpreter observed there was no conclusive evidence of sleep disordered breathing. The PFT also was performed in December 2012 and similarly interpreted as within normal limits. Based on this evidence, the Board finds there is no relationship between the Veteran's insomnia and her periods of active military service, whether on AD or ACDUTRA, as there is no evidence that insomnia manifested in service or that a sleep disorder that manifested after service is related to any disease, injury, or event during her service. See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67. Further, service connection has not been established for depression or any other psychiatric disorder, in fact, the opposite, it has been denied, and thus the examiner's finding that the Veteran's insomnia is secondary to a mood disorder does not warrant service connection on a secondary basis. See 38 C.F.R. § 3.310. Finally, the preponderance of the competent and credible evidence shows the Veteran does not have sleep apnea. To the extent she asserts that she does have sleep apnea, this lay argument is outweighed by more probative evidence in the form of the September 1998 and December 2012 sleep studies and the findings of the medical professionals who examined her and determined she did not have this disorder. Whether she has sleep apnea is a determination that is too complex from a medical standpoint to be made based on mere lay observation alone; indeed, this diagnosis is usually only made based on the results of a sleep study, the results of which in this particular instance did not suggest the Veteran has this disorder. Thus, as a layperson, she is incompetent to determine whether she has this disorder. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)( observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"). Therefore, the Board accords more weight to the findings of the medical professionals who determined that she does not have sleep apnea, as they, unlike her, are competent to make such an assessment, and this assessment was based on objective clinical studies. See 38 C.F.R. § 3.159(a)(1) versus (a)(2). In the absence of competent and credible evidence showing the Veteran has had sleep apnea during the pendency of this appeal, service connection cannot be granted for this disorder. See Shedden, 381 F.3d at 1166-67 (holding that service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Accordingly, the preponderance of the evidence is against her claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for insomnia must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER The claim for entitlement to service connection for insomnia is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs