Citation Nr: 1310125 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-16 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a sleep disability, claimed as narcolepsy and sleep apnea, and if so, whether service connection is warranted. 2. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a left elbow fracture. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1971 to December 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2007 and August 2011 rating decisions by the Indianapolis, Indiana Department of Veterans Affairs (VA) Regional Office (RO). Although the RO may have implicitly reopened the Veteran's claim of service connection for a sleep disorder in the August 2011 rating decision, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The Board has reviewed the Veteran's physical claims file and his file on the "Virtual VA" system to insure a total review of the evidence. The entitlement to a disability rating in excess of 10 percent for service connected residuals of a left elbow fracture 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. In a June 2007 rating decision, the Veteran was denied entitlement to service connection for a sleep disorder. 2. Evidence received since the June 2007 rating decision, by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim for service connection for a sleep disorder, claimed as narcolepsy and sleep apnea. 3. The Veteran's sleep disorder did not have onset in service and was not caused by or aggravated by the Veteran's active military service. CONCLUSIONS OF LAW 1. The June 2007 rating decision which denied service connection for a sleep disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156(b) (2012). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a sleep disorder, claimed as narcolepsy and sleep apnea. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Claim to Reopen Entitlement to Service Connection for a Sleep Disorder Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's original claim of service connection for a sleep disorder, at that time claimed as sleep apnea, was denied in an unappealed June 2007 rating decision, essentially based on a finding that although the Veteran had been treated for episodes of sleep disturbances during active service, there was no evidence of a clinically diagnosed sleep disorder shown by the service medical records or demonstrated by the post-service evidence. He did not submit any new and material evidence in the matter within one year, and the decision is final 38 C.F.R. § 3.156(b). Evidence of record at the time of the June 2007 rating decision included the Veteran's service treatment records (STRs) which documented the Veteran's inservice complaints of sleeping trouble and possible narcolepsy, his December 1975 separation examination and associated report of medical history showing his reports of heroin use and inservice complaints of sleep trouble related to his drug use, and treatment records from the VA Medical Center showing some complaints of trouble sleeping associated with treatment for depression. Pertinent Evidence received subsequent to the June 2007 rating decision includes additional VA treatment records which document further complaints of trouble sleeping and the results of a September 2011 sleep study from St. Francis Medical Center which show the Veteran has a diagnosis of moderate obstructive sleep apnea-hypopnea syndrome. As the Veteran's claim of service connection for a sleep disorder was previously denied based on a finding that he had no clinical diagnosis of a sleep disorder, for evidence to be new and material, it must relate to that unestablished fact (i.e. must show that the Veteran has been given a clinical diagnosis of a sleep disorder). As the evidence received since the June 2007 rating decision, specifically the September 2011 St. Francis Medical Group sleep study, includes a diagnosis of a current sleep disorder (moderate obstructive sleep apnea-hypopnea syndrome), there is new evidence that relates to an unestablished fact necessary to substantiate the claim of service connection for a sleep disorder and raises a reasonable possibility of substantiating the claim. Consequently, particularly in light of the "low threshold" standard outlined by the Court in Shade, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received, and that the claim of service connection for a sleep disorder must be reopened. De novo consideration of the matter is addressed below Entitlement to Service Connection for a Sleep Disorder In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran contends that he is entitled to service connection for a sleep disorder, as such was caused by or the result of his active service. Specifically, at his December 2011 Decision Review Officer (DRO) hearing, the Veteran testified that it was his belief that his work as an aircraft mechanic, which brought him into close proximity to hazardous fumes, was the cause of his sleep trouble in service and his current sleep disorder. At the outset, the Board notes that the Veteran is not prejudiced by the Boards proceeding to de novo review on the issue of entitlement to service connection for a sleep disorder, claimed as narcolepsy and sleep apnea (without remanding the matter to the RO for reconsideration upon reopening), because the RO's April 2012 adjudication in this matter included de novo review (as well as the development necessary for de novo review). As discussed above, the Veteran's STRs contain complaints of daytime sleepiness, insomnia, and notations of possible narcolepsy. However, on his December 1975 separation examination, the Veteran admitted to being a heroin user and requested assistance with detoxification. On the associated December 1975 report of medical history, it is noted that the Veteran reported that his heroin use caused his documented sleeping trouble, providing highly probative evidence against this claim as it clearly gives the reason for the problem in service, a reason that cannot form the basis of the grant of service connection: heroin use at that time. VA treatment notes of record show that the Veteran occasionally reported trouble sleeping, which he associated with his depression for which he was seeking treatment. November 2010 VA treatment records show that the Veteran began receiving treatment by a sleep specialist. The Veteran reported that he had sleeping problems since being in the military and had difficulty falling asleep, and once asleep, had difficulty waking up. The Veteran was advised to follow a strict sleep routine and continued to receive treatment for his sleep trouble at the VA Medical Center. September 2011 private treatment records from St. Francis Medical Group show that the Veteran underwent a sleep study to determine the nature of his sleep disorder. The study revealed that the Veteran suffered from moderate obstructive sleep apnea-hypopnea syndrome. The Veteran was given recommendations to optimize his sleep hygiene and a trial CPAP machine was suggested. [The Board notes that the Veteran currently uses a CPAP machine that is monitored by the VA Medical Center.] The Veteran was afforded a VA examination in November 2011. At that time the Veteran reported that he recalled something about narcolepsy in service, but was unable to remember the details. The examiner indicated that she conducted a thorough review of the Veteran's claims files, and noted his long history of drug use and that his STRs reflected he had a problem with insomnia while on active service. The examiner noted that the Veteran had a current diagnosis of sleep apnea and that he was given a CPAP machine in October 2011. After review of the claims files and examination of the Veteran, the examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by his active service, to include the reports of insomnia and narcolepsy noted therein. The examiner explained that the Veteran had a long and well documented history of illegal drug use and that it was well recognized in medical literature that substance abuse results in sleeping disturbances. Furthermore, the examiner noted that the Veteran had no complaints of sleeping disturbances for nearly 35 years following the complaints documented in service and that he had no associated sequela expected with long term untreated obstructive sleep apnea. It was therefore, the examiner's opinion that the Veteran's complaints of daytime sleepiness and insomnia documented in his STRs was were a result of his illegal drug use, and that the Veteran's current sleep apnea was more likely a result of his age than his active military service. The Board notes that it is not in dispute that the Veteran currently has a diagnosed sleep disorder, as it is shown by the competent medical evidence of record that the Veteran has a current diagnosis of sleep apnea. The Board also notes that it is not in dispute that the Veteran has documented complaints of sleep trouble in his STRs. However, what remains for consideration, is whether the Veteran's current sleep disorder (sleep apnea), is related to his active service, and more specifically, to his documented complaints of sleep trouble therein. The Board finds that the only competent (medical) evidence that addresses this issue is the November 2011 VA examination report. The examiner reviewed the record, including the Veteran's STRs, and concluded that the Veteran's current sleep apnea was less likely than not related to his active service, to include the complaints of sleep trouble noted therein. The examiner explained that the complaints of sleep trouble made by the Veteran during service were a result of his illegal drug use. This finding is corroborated by the reports made by the Veteran at his December 1975 separation examination, when he reported that his heroin use caused trouble sleeping. The examiner explained that the Veteran did not have any of the associated sequela of long term untreated sleep apnea and that he had not complained of any sleep trouble for nearly 35 years following the complaints in service. Therefore, the examiner opined that it was more likely that his current sleep apnea was related to age and not his active military service. The examiner is competent to offer the opinion and it is probative evidence in the matter. Because there is no competent (medical, as this is a medical question) evidence to the contrary, it is persuasive. The only evidence currently of record relating the Veteran's sleep apnea to his active service, and his complaints of sleep trouble therein, are the Veteran's own assertions. While the Veteran may believe that his current sleep disorder was caused by his active service, or that it is in some way related to his complaints of sleep trouble made during active service, he has not demonstrated that he has any knowledge or training in determining the etiology of such a medical condition. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence; however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer an etiology opinion rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has a sleep disorder due to his military service, to include the complaints of sleep trouble therein, is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather, such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's sleep apnea is related to his active service, to include any complaints of sleep trouble therein,. Accordingly, the benefit of the doubt rule does not apply, and the appeal must be denied. Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA 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 accordance with 38 C.F.R. § 3.159(b)(1), 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in February 2011 and June 2011 that fully addressed all notice elements. The letters were sent prior to the initial RO decision in this matter and provided notice in accordance with Kent. These letters also informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records and he was afforded a VA medical examination in November 2011. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. 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). ORDER New and material evidence to reopen a claim of service connection for a sleep disorder, claimed narcolepsy and sleep apnea, has been received. The claim is reopened. Entitlement to service connection for a sleep disorder, claimed as narcolepsy and sleep apnea, is denied. REMAND The Board finds that additional development is required before the Veteran's remaining claim on appeal is decided. At the outset, the Board notes that the Veteran has multiple disabilities that affect his left upper extremity. These disabilities include the service-connected residuals of a left elbow fracture and non-service-connected left wrist carpal and cubital tunnel syndrome. In August 2009, the Veteran had surgery on his non-service-connected carpal and cubital tunnel disabilities, in the form of left carpal tunnel release, left cubital tunnel release, and an ulnar nerve transportation. There is currently no evidence of record that indicates the Veteran's non-service-connected carpal or cubital tunnel disabilities, and related surgeries, are etiologically related to his service-connected residuals of a left elbow fracture. In November 2011, the Veteran was afforded a VA examination to determine the current severity of the symptoms associated with his service-connected residuals of a left elbow fracture. However, upon review of the examination report, the Board finds that this examination was inadequate. When reporting the examination findings, the examiner took into account the functional impairment resulting from the Veteran's non-service-connected disabilities. As the Veteran's only service-connected disability affecting his left arm is the residuals of the left elbow fracture, the Board finds that a new VA examination is necessary to address the symptoms and functional impairment caused solely by this service-connected disability. Furthermore, the Board notes that the Veteran's service-connected residuals of a left elbow fracture is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5209, which requires "marked cubitus varus or cubitus valgus deformity or with un-unified facture of head of radius" for a 20 percent disability rating. In a June 2010, statement the Veteran's representative, reported that such a deformity was present in the Veteran's left elbow. The Board notes that the November 2011 VA examination does not note the presence, or absence, of any cubitus deformity, and such notation is requested on remand. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a new VA examination by an examiner with sufficient expertise to determine the current symptoms and severity of the residuals of the Veteran's left elbow fracture (alone). The claims file must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. In discussing the relevant clinical findings, the examiner should specifically note the Veteran's current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability. These findings should only be made as to the Veteran's service-connected residuals of a left elbow fracture (if any). The examiner should not consider any symptoms or impairment caused by any non-service-connected disabilities, to specifically include, left wrist carpal and cubital tunnel. In addition, the examiner is specifically requested to make a finding as to whether there is any cubitus deformity present in the Veteran's left elbow as a result of the service-connected residuals of a left elbow fracture. The supporting rationale for all opinions expressed must be provided. 2. The RO should ensure that all development sought is completed, and then re-adjudicate the claim. If the benefits sought remain denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs