Citation Nr: 1307617 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-31 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a sleep disorder, to include sleep apnea. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran had active service from November 2005 to April 2006, and from June 2006 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The July 2009 rating decision also denied a service connection claim for irritable bowel syndrome, which was perfected for appeal by the Veteran. However, by a February 2011 rating decision, service connection for irritable bowel syndrome was granted, which represents as full grant of the benefit sought. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The issue is no longer in appellate status. The Veteran did not appeal the rating or effective date assigned. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. A sleep disorder, characterized as insomnia, is a symptom of the Veteran's service-connected PTSD, and is already part of the service-connected disability picture. 2. Sleep apnea is not currently demonstrated in the record. CONCLUSION OF LAW Service connection for a sleep disorder, to include sleep apnea, was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1111, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. With respect to the claim for a sleep disorder, the Veteran was sent a letter in October 2009 that addressed all notice elements. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The Veteran was additionally notified of how VA determines a disability rating and effective date if service connection is awarded. With that letter, the RO effectively satisfied the notice requirements with respect to the issue on appeal. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after the Veteran was provided the October 2009 notice, the matter was readjudicated in a May 2010 statement of the case. Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, 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 Veteran's virtual claims file contains the Veteran's service treatment records, as well as post-service VA treatment records. Moreover, the Veteran's statements and those of his friends and family, in support of his claim, are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. Next, a VA examination was obtained in November 2009 to address the nature and etiology of the Veteran's claimed sleep disorder. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained is more than adequate. The VA examiner considered all of the pertinent evidence of record, to include his service treatment records, personal statements and history, and provided detailed rationale for her determination that the Veteran did not have a diagnosis of sleep apnea. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The VA examiner considered all of the pertinent evidence of record and could not find a disease process or disability upon which to base a diagnosis with respect to sleep apnea. Although the VA examiner indicated that a sleep study was necessary, one was subsequently completed by the VA in March 2010. This testing again failed to reflect a diagnosis of sleep apnea. Next, the Board acknowledges that a VA etiological opinion was not provided with respect to his sleep disorder claim. In determining whether the duty to assist requires that a medical opinion obtained with respect to a appellant's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the appellant's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In deciding to remand an issue for a medical nexus opinion, the Board notes that the Federal Circuit, in a recent decision, upheld the determination that a VA medical examination is not required as a matter of course in virtually every veteran's disability case involving a nexus issue. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by a appellant, in which case an examination may not be required). The Board concludes that a VA opinion is not needed to address his sleep disorder claim. Significantly, although service treatment records reflect complaints of difficulty sleeping and the Veteran continues to complain of sleep related issues, post-service treatment records do not confirm a diagnosis of sleep apnea. Any opinion as to likely etiology would therefore be moot, and a remand for a VA opinion would unduly delay resolution. Accordingly, the VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance 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). II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). 'In the absence of proof of a present disability there can be no valid claim.' See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There are essentially two aspects to the Veteran's claim for service connection for a sleep disorder. The first concerns his claimed symptoms of insomnia, related to psychiatric factors. The Board notes that the Veteran is currently service connected for posttraumatic stress disorder (PTSD). Sleep impairment is included as a symptom of psychiatric disability to be evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130. To the extent his sleeping problems are considered to be symptoms of his psychiatric disability, they are already service-connected, and included in the rating for that condition, and a separate rating is not indicated. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). At the Veteran's August 2010 PTSD VA examination he reported nightmares of his Iraq military experience approximately every other night. He reported that these were sometimes so severe that he will awaken and he will be in a sweat and feel extremely frightened. The Veteran and his fiancé reported that he sleeps fitfully and frequently thrashes about while he sleeps. In the August 2010 rating decision, which granted service connection for PTSD, the RO considered the Veteran's nightmares about his military experiences and the fact that these nightmares at times are so severe that they wake the Veteran from his sleep. The August 2010 rating decision notes that a 30 percent disability evaluation is being awarded due to such symptoms including difficulty sleeping. The second aspect of his claim is the physical condition of obstructive sleep apnea. However, following objective testing a diagnosis of sleep apnea has not been made. An October 2009 VA treatment record reflected excessive snoring. A November 2009 VA treatment record noted a diagnosis of snoring, increased airway syndrome vs. obstructive sleep apnea. The Veteran was subsequently evaluated at a November 2009 VA examination. The VA examiner noted that the Veteran had a normal respiratory examination with insufficient evidence to warrant a diagnosis of sleep apnea. The VA examiner indicated that the Veteran's service treatment records were completely negative of symptoms suggestive of sleep apnea and the Veteran's subjective complaints were not typical for sleep apnea. She diagnosed the Veteran with snoring. A sleep study was subsequently completed in March 2010 and the Veteran was diagnosed with snoring. A November 2010 treatment record noted a diagnosis of snoring and reflected that the sleep study revealed there was no obstructive sleep apnea. A January 2011 VA treatment record noted that with the help of sleeping pills the Veteran felt his sleep was adequate. The Board has considered that the Veteran's service treatment records reflect complaints of problems sleeping. See April 2009, November 2006 examinations. Significantly, the records do not demonstrate that the Veteran was definitively diagnosed with a sleep disorder during service, or a chronic condition associated with sleep difficulty symptomatology. As discussed above, a review of the post-service evidence reveals that the Veteran has not yet been formally diagnosed as having sleep apnea. Moreover, although the Veteran asserts that he continues to suffer from insomnia, this symptomatology has already been considered in the evaluation of his service-connected PTSD disability. As set forth above, one of the elements necessary for service connection is medical evidence of a current disability. The Court has held that there can be no valid claim without proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, however, there is no evidence of a diagnosis of sleep apnea during the period under appellate review. Moreover, although insomnia has been reported and diagnosed, this symptomatology has already been considered part of his service-connected PTSD disability. In the absence of competent medical evidence showing that the Veteran presently has sleep apnea or a separate sleep disorder not associated with his PTSD, there is no basis for the granting of direct service connection for this condition. The Board acknowledges that the Veteran is competent to indicate he has sleeping difficulty and snores. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). However, he is not competent to ascribe these symptoms to a particular diagnosis of sleep apnea, or attribute his current symptoms to his active duty service. Rather, physical evaluation and diagnostic testing (such as performed by the November 2009 VA examiner and March 2010 sleep study) are required to diagnose sleep apnea. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). But see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (clarifying that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and service or a service-connected disability). The Board finds he is not competent to self-diagnose sleep apnea. Because there is no diagnosis of sleep apnea, or other competent and credible evidence the Veteran has this condition, there is no possible means of attributing this non-existent condition to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ('A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.'). As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for a sleep disorder, to include sleep apnea, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs