Citation Nr: 1320561 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-15 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a rating in excess of 20 percent for arthritis of the lumbosacral spine with bilateral radiculopathy. 2. Entitlement to service connection for a sleep disorder to include sleep apnea, as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to May 1985, and from February 1986 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In January 2012, a hearing was held before a Decision Review Officer (DRO) at the RO. In February 2013, a videoconference hearing was held at the RO before the undersigned Veterans Law Judge. Transcripts of both hearings are in the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. At the hearings, the DRO and the undersigned Veterans Law Judge, identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claims. The Veteran described the symptoms associated with his claimed conditions. At both hearings the submission of additional evidence was discussed, with input from the Veteran's accredited representative. The record was held open after both hearings. Since those hearings, additional evidence has since been submitted in support of the Veteran's claims. The Board finds that the hearings did not reveal any other evidence that might be available, but has not been associated with the claims file. The Veteran has not alleged that there were any deficiencies in the hearings related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. In a March 2012 rating decision, the RO awarded an increased 50 percent disability rating for the Veteran's major depressive disorder, now also including fatigue, lethargy and excessive sleepiness, and associated with arthritis lumbosacral spine, diagnosed with bilateral radiculopathy, previously noted as hip pain. Most notably again, excessive sleepiness has been associated with the Veteran's service-connected major depressive disorder associated with arthritis of the lumbosacral spine, and such symptoms will not be considered further herein. The Veteran recently submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration. Therefore, the Board may proceed. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). The claim for a rating in excess of 20 percent for arthritis of the lumbosacral spine with bilateral radiculopathy, requires further development and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent evidence does not show that the Veteran has a sleep disorder to include sleep apnea, that is caused or permanently aggravated by a service-connected disability or medications prescribed for such disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a sleep disorder to include sleep apnea and other than excessive sleepiness on the basis of direct and/or secondary to service connection have not been met. 38 U.S.C.A. §§ 1110, 1131 (West. 2002); 38 C.F.R. §§3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. 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 United States Court of Appeals for the Federal Circuit (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. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. This notice must be provided prior to an initial unfavorable 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). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Dingess, the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letter sent to the Veteran in October 2009, and October 2010. That letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. The Veteran's appeal was readjudicated in a September 2011 statement of the case (SOC), and a September 2012 supplemental statement of the case (SSOC). Neither the Veteran, nor his representative, has asserted any deficiencies in the notice provided to the Veteran with regard to the claim. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the service connection claim. The Veteran's in-service and post-service treatment reports are of record as are VA records. He has been afforded VA examinations to address the etiology and relationship of his claimed sleep disorder including sleep apnea and his service-connected disabilities. The most recent VA examination and medical opinion on the matter was in July 2012. 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 together the medical opinions obtained in this case are more than adequate, as together they reflect a full review of all medical evidence of record, are supported by sufficient detail, and refer to specific documents and medical history as well as the Veteran's service history to support the conclusions reached, and where necessary, address service connection on both a secondary and aggravation basis, as required by 38 C.F.R. § 3.310. VA has properly assisted the Veteran in obtaining any relevant evidence. Thus, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Ay increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2012). Background The Veteran's claims that he has a sleep disorder, including sleep apnea that is secondary to pain due to service-connected disabilities and/or due to pain medication taken for his service-connected disabilities. The Veteran's service-connected disabilities are major depression with fatigue, lethargy, and excessive sleepiness, rated as 50 percent disabling; bilateral pes planus rated as 30 percent disabling; chronic right and left knee tendonitis, each separately rated as 20 percent disabling; arthritis of the lumbosacral spine, rated as 20 percent disabling; residuals of left acromioclavicular separation, rated as 20 percent disabling; left and right ankle sprains, right shoulder dislocation, tinnitus, right hip tendonitis, left and right knee instability, each separately rated as 10 percent disabling; and noncompensable ratings for bilateral cataracts and left shoulder scar. His total disability evaluation with the bilateral factor is 100 percent. VA records in January 1996 show that the Veteran received treatment for multiple joint pain. Mild sleep disturbance was reported. VA records through early 2000 show that the Veteran complained of back pain and that he had been on dozens of NSAIDS (nonsteroidal anti-inflamatory drugs). He was using Oxaprozin. In a September 2002 VA clinical entry it was reported that the Veteran was placed on Amitriptyline for depression which caused sedation. Also, he had had lumbar epidural steroid injections. Prednisone had been prescribed for arthritis and pain. In early to mid 2004, VA records show that the Veteran had been treated since February 2003 for obstructive sleep apnea, and a CPAP (continuous positive airway pressure) machine had been prescribed. The diagnosis was obstructive sleep apnea. In May 2009, the Veteran received treatment in a VA sleep clinic for excessive fatigue and sleepiness. It was later reported that the Veteran was on several medications that cause daytime fatigue. In an October 2009 VA psychiatric examination report, it was stated that the Veteran's sleep had been difficult with sleep apnea and that he awakened several times an hour with a CPAP or BiPap machine. In November 2010, a VA medical examination of the joints was performed. The examiner stated that the claims folder was reviewed. It was stated that the Veteran had obstructive sleep apnea and used a CPAP device. The examiner opined, in pertinent part, that following review of the evidence of record, history, clinical presentation, and physical examination he could find no medical basis or evidence to support that the obstructive sleep apnea is due to as result of or aggravated by the service-connected lumbar spine, bilateral knee, ankle, and foot conditions. In April 2011 along with sleep apnea, it was questioned whether the Veteran also had narcolepsy versus hypersomnolence. In a February 2012 mental health examination the Veteran indicated that he typically slept all night long and up to a total of 12 hours. He reported that he felt tired for hours after he awakened. In a May 2011 VA sleep medicine note the examiner noted in response to the Veteran's complaints of tiredness that he explained to the Veteran that he had an erratic sleep schedule due to his work, and a significant psychological overlay identified as mainly family and personal issues on top of his sleep apnea. The assessment was sleep apnea. In a February 2012 addendum to a February 2012 VA mental disorders compensation and pension examination, the examiner stated that the Veteran's problems with lethargy and excessive sleepiness did not warrant a separate diagnosis. The lethargy and excessive sleepiness related specifically to the Veteran's service-connected major depressive disorder and did not warrant a separate DSM-IV diagnosis. Subsequently, in a March 2012 rating decision, the RO recharacterized the Veteran's service-connected psychiatric disorder to include fatigue, lethargy and excessive sleepiness, and increased the assigned evaluation to 50 percent. At a July 2012 medical examination, it was reported that the Veteran's claims file was reviewed. The examiner opined that there was no evidence in the entries to suggest that sleep apnea was aggravated by chronic pain related to the Veteran's service-connected joint disorders. There was also no evidence in literature to suggest that sleep apnea is aggravated by his chronic pain. Therefore it was less likely than not that the Veteran's sleep apnea is secondary to and/or aggravated by chronic pain related to his service-connected disabilities. The examiner also stated that it would be speculation to opine if his medications are aggravating his sleep apnea as there is not a baseline sleep study prior to his medication use. It was stated his medication is not the cause of his obstructive sleep apnea as there is no support for the contention in the literature. Obstructive sleep apnea is due to reduced (airway) size as described below. The examiner then quoted an internet source indicating that: "Patients with OSA have a reduced upper airway size due to excess surrounding soft tissue or a highly compliant airway. A reduced airway size, combined with diminished neural output to the upper airway muscles during sleep and at apnea onset, can result in partial or complete airway collapse." In August 2012 VA, outpatient medication records show that the veteran had been prescribed acetaminophen and Meloxicam for pain. Analysis The Veteran's claim for a sleep disorder is predicated on the notion that he has a disorder separate and apart from that associated with his service-connected psychiatric disorder that is due to pain from his service-connected disabilities and/or due to pain medication taken for his already service-connected disabilities. He is not alleging, and the evidence does not otherwise suggest that his sleep disorder, including sleep apnea instead either was directly incurred in service. There is no competent evidence linking a claimed sleep disorder or sleep apnea, to the Veteran's military service. 38 U.S.C.A. §§ 1110, 1131 (West. 2002); 38 C.F.R. §§ 3.303. Further, fatigue, lethargy, and excessive sleepiness have already been associated with the Veteran's service-connected major depressive disorder. The Board has reviewed the record and must also conclude that there is no competent evidence that shows that the Veteran has a sleep disorder other than excessive sleepiness, and including also sleep apnea that is secondary to pain or pain medication used for a service-connected disability. 38 C.F.R. § 3.310 (a). Here, the medical evidence confirms that the Veteran has sleep apnea, requiring the use of a CPAP and BiPAP device for treatment of the disorder. He also has numerous service-connected disabilities, including multiple joint disabilities. The Veteran has been prescribed or treated with NSAIDS, steroids, epidural injections in his lumbar spine, and pain medications for his several service-connected joint disabilities. It is important to note at this point that in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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). Here there is persuasive evidence, but it is against the Veteran's claim. In the July 2012 VA examiner's medical opinion, the examiner reported that he had reviewed the claims file. It was opined that based on a review of the record, it was less likely than not that the Veteran's sleep apnea is secondary to and/or aggravated by chronic pain related to his service-connected disabilities. The examiner also stated that without a baseline study it would be speculative to opine that the Veteran's medications are aggravating his sleep apnea. However, the examiner then went on to state that the Veteran's medications were not the cause of his obstructive sleep apnea as there is no support for the contention in the literature. A pertinent medical literature excerpt was provided to support the opinion. So there is no competent evidence that in any way shows a claimed sleep disorder, to include sleep apnea and other than excessive sleep associated with his service-connected depressive disorder, is caused or permanently aggravated by pain due to service-connected disabilities and/or pain medication taken for a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, that competent medical nexus evidence is required to associate a secondary disorder with a service-connected disability). Also, the record is absent for any medical evidence in support of the Veteran's assertions. So there is no competent medical evidence to the contrary. The Board is aware that narcolepsy versus hypersomnolence was questioned but not definitively diagnosed in the past, yet neither has been necessarily disassociated by competent medical evidence from the already service-connected depressive disorder and associated excessive sleepiness. The Board has considered the Veteran's lay statements in support of this claim. He is competent to proclaim having experienced pain and also his problems or complaints regarding his sleep. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); also Barr v. Nicholson, 21 Vet. App. 303 (2007). However, he is not also competent to then attribute his pain and medication used for pain for his service-connected disabilities to his sleep apnea or any other claimed sleep disorder. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, the Board finds that the preponderance of the evidence is against service connection for a sleep disorder (other than excessive sleepiness) to include sleep apnea, as secondary to service-connected disabilities. So there is no reasonable doubt to resolve in the Veteran's favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a sleep disorder to include sleep apnea, as secondary to service-connected disabilities is denied. REMAND As mentioned in the Introduction, in February 2013, a videoconference hearing was held at the RO by the undersigned Veterans Law Judge. At the hearing, the Veteran testified that within a two year period he had had approximately eight epidural treatments for his back pain. He mentioned that after his epidurals "wore off", he was hardly able to bend, that he had diminished strength lifting objects, and that he was unable to sit or stand for extended periods of time. He also testified that he believed that his radiculopathy of the legs had worsened. At the most recent July 2011 VA medical examination of the spine, epidural treatment for the Veteran's back pain complaints was not mentioned in his medical history. And while physical examination findings revealed objective pain on motion of the thoracolumbar spine, range of motion studies revealed limited pathology, as did neurological findings. Based on the Veteran's testimony, which must be deemed credible, there is evidence of a potential increase in severity or worsening of his service-connected arthritis of the lumbosacral spine with bilateral radiculopathy, at least since his last VA compensation and pension examination in July 2011. He needs to be reexamined to reassess the severity of this disability since his most recent VA compensation examination nearly two years ago. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule a VA compensation examination to reassess the severity of the Veteran's service-connected arthritis of the lumbosacral spine with bilateral radiculopathy. The claims file, including a copy of this remand, must be made available to the examiner for review and consideration of the relevant history. All necessary diagnostic testing and evaluation should be performed. The examiner must describe all symptoms due to this disability, including the associated neurological pathology or impairment (sciatic neuropathy/radiculopathy bowel and/or bladder dysfunction). To this end, the examiner should determine: (a) whether there are symptoms analogous to complete versus incomplete paralysis of the sciatic nerve and (b) if incomplete, whether the paralysis is mild, moderate, moderately severe, or severe, with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. The examiner should also state whether there is any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In reporting the results of the range-of-motion testing, the examiner should identify any objective evidence of pain and the specific excursions of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the extent of any pain and describe the extent of any incoordination, weakened movement, and excess fatigability on use. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups, such as the extent this causes additional limitation of motion. The examiner must specifically comment also on whether the Veteran has favorable or unfavorable ankylosis of his entire thoracolumbar spine or unfavorable ankylosis of his entire spine. See 38 C.F.R. § 4.71a, DC 5242. It is imperative the examiner discuss the rationale of all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 2. Then readjudicate the claim in light of any additional evidence. If the claim continues to be denied, send the Veteran and his representative another SSOC, and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration. 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). (Continued on the Next Page) 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs