Citation Nr: 1323078 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 08-29 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from May to December 2001. She served in the National Guard and Reserves, with periods of active duty for training and inactive duty for training, from 1976 to 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2007 (sleep apnea) and June 2010 (PTSD) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board notes that when a claimant makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the psychiatric claim on appeal to more broadly reflect the benefit sought based on the testimony rendered before the undersigned. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, 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. FINDING OF FACT There is at least an approximate balance of positive and negative evidence regarding whether the Veteran has sleep apnea related to her service-connected disabilities. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, she has sleep apnea related to her service-connected disabilities. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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 Veteran). With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Furthermore, in light of the favorable decision below, the Board finds that any error in complying with VCAA would be harmless. Laws and Regulations Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of 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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310(a). The United States Court of Appeals for Veterans Claims (Court) has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service- connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). Finally, the ultimate credibility or weight to be accorded evidence is a question of fact. As the fact finder the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis In the present case, the Veteran contends that she developed sleep apnea as a result of her service-connected joint, spine, and fibromyalgia disabilities. She was afforded a VA general medical examination in January 2007. The VA examiner diagnosed mild obstructive sleep apnea based on a review of private treatment records, but did not provide a nexus opinion. Although this examination is inadequate, taking into account all relevant evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for sleep apnea is warranted. As such, remand for an adequate examination is unnecessary. The Veteran's National Guard and Reserve treatment records contain some complaints of difficulty sleeping. She initially indicated she had frequent trouble sleeping in August 1988, and appears to attribute this to sinuses. She then did not complaint of difficulty sleeping again until 2004. In November 2004, the Veteran experienced neck, arm and shoulder pain following a strenuous physical fitness training. Her pain was of a severity that she was unable to sleep. She also experienced tingling in her arms. In an additional note during this period she was noted to have swelling and sensory changes in her hand, as well as pain. "This does affect her sleep at night." She was assessed with cervical radiculopathy. In January 2005, she underwent cervical epidural steroid injections, and it was noted that Ibuprofen was helping her to be able to sleep. In January 2006, the Veteran underwent a sleep study and was diagnosed with mild obstructive sleep apnea. The private physician ordered a CPAP machine for the Veteran due to the level of her "sleep-disordered breathing." In March 2007, the Veteran's private physician provided a letter in support of her claim. Dr. B.J.D. noted that "from lack of sleep from the pain she endured [due to her cervical spine, bilateral knee, left hip, bilateral shoulder, plantar fasciitis, Morton neuroma, and hand and leg pain] she developed 'sleep apnea' in which she is required to use a CPAP." In November 2007, the Veteran explained to her VA treating physician that she developed a sleep disorder as a result of the pain in her neck from her in-service incident in 2004. In March 2009, she continued to complain about her difficulty sleeping due to pain in many of her joints. The Veteran is currently service connected for: fibromyalgia, cervical degenerative disc disease, left hip bursitis, bilateral shoulder osteoarthritis, degenerative joint disease of both knees, bilateral plantar fasciitis, Morton's neuroma of the left foot, and right upper extremity radiculopathy. She has a combined 90 percent disability rating for her physical disabilities. The Veteran has also provided statements that many women she served with would complain about her loud snoring. The evidence included a diagnosis of obstructive sleep apnea, and a private physician's opinion linking the Veteran's development of obstructive sleep apnea to the pain of her numerous service-connected physical disabilities. Additionally, there are contemporaneous complaints in her service treatment records of sleep disturbance due to pain. As she has a current diagnosis and a credible link between her service-connected disabilities and sleep apnea, the Board finds that entitlement to service connection for obstructive sleep apnea is warranted. ORDER Entitlement to service connection for sleep apnea is granted. REMAND The Veteran claims that she suffers from PTSD as a result of harassment suffered from a commanding officer in the late 1970s/early 1980s. She also has indicated that her treatment as a woman in general was frustrating, as she was passed up for promotions and bonuses, and this has left her angry and frustrated for 30 years. The Veteran is currently service connected for fibromyalgia, and one of the symptoms associated with this disability is depression. It is now well-settled that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability, in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). In March 2013, the Veteran was afforded a VA PTSD evaluation. The evaluator thoroughly reviewed the claims file and found that the Veteran did not meet the full DSM-IV requirements for a diagnosis of PTSD. Indeed, many of her VA treatment records noted a diagnosis of "subthreshold PTSD" and depression. The VA evaluator noted that the Veteran's depression is rated as part of her service-connected fibromyalgia, and that her depression is related to her physical limitations and pain. The evaluator, however, diagnosed the Veteran with a mood disorder, which she (the evaluator) found to be distinct from the Veteran's depression. While the evaluator thoroughly explained why the Veteran did not meet the criteria for PTSD, and why the harassment the Veteran encountered in service did not result in a psychiatric disorder, the evaluator did not provide a nexus opinion for the diagnosis of a mood disorder. While the Veteran claimed entitlement to service connection for PTSD, and the examination focused on PTSD, the Court in Clemons, as noted above, requires that the VA look at the symptoms reported (anger, social limitations, sadness, loss of interests, reduced self-esteem, etc.) for service connection. On remand, the claims file should be returned to the March 2013 VA evaluator, if available, for an addendum opinion addressing whether the Veteran's mood disorder is due to her service or her service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the March 2013 VA evaluator, if available, so that an addendum may be prepared which includes the following inquiries: a) Whether it is at least as likely as not (a 50/50 probability or greater) that the Veteran's mood disorder is due to her service. b) Whether it is at least as likely as not the Veteran's mood disorder is due to or aggravated by her service-connected disabilities, to include in combination. The claims folder, to include a copy of this Remand, and access to virtual records, should be made available to the examiner. A complete rationale for any opinion expressed and conclusion reached should be set forth, and any contradictory evidence must be addressed. If the March 2013 VA examiner is unavailable or unwilling to provide an Addendum report, a medical opinion with supporting rationale should be obtained from another qualified medical professional. If any examiner determines that physical examination and/or diagnostic testing of the Veteran are necessary, or that a specialist should be consulted, such should be scheduled. A report should be prepared and associated with the Veteran's VA claims folder. 2. Following the completion of the foregoing, and after undertaking any other development it deems necessary, readjudicate the Veteran's service connection claim. If the claim is denied, in whole or in part, provide the Veteran with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs