Citation Nr: 1325596 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 07-20 918A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for chronic back disability. 2. Entitlement to service connection for obstructive sleep apnea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1984 to July 1987 and from November 1987 to February 1992. He also had additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas, that denied service connection for a back disorder and residuals of environmental exposure. The Veteran filed a timely notice of disagreement with the RO's action. An August 2008 rating decision denied service connection for sleep apnea and chronic fatigue syndrome. In March 2012, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the March 2012 hearing, the undersigned clarified the issues on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. This matter was previously before the Board in May 2012 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, with regard to the issue being decided herein, the Board finds that the agency of original jurisdiction substantially complied with the May 2012 remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that the issues previously before the Board included service connection for residuals of exposure to environmental hazards variously claimed as sleep apnea, gastrointestinal distress, and undiagnosed illness. During the pendency of this appeal, by rating action dated in November 2012, the RO awarded service connection for irritable bowel syndrome and anemia. As the award of service connection for irritable bowel syndrome and anemia constitute a complete grant of the benefits sought on appeal as to those specific aspects of the initial claim, they are no longer on appeal before the Board. The remaining question of service connection for obstructive sleep apnea remains before the Board as captioned above. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of service connection for obstructive sleep apnea 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 Chronic back disability did not have its clinical onset during service, arthritis of the spine was not diagnosed within the first post service year, and back disability is not otherwise related to active service. CONCLUSION OF LAW The criteria for the establishment of service connection for chronic back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in July 2004, November 2004, June 2005, August 2005, February 2007, June 2007, December 2008, March 2009, May 2012, and December 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. Some of the Veteran's service treatment records are unavailable as indicated in a June 2005 VA Formal Finding on the Unavailability of Service Medical Records. The Board recognizes that there is a heightened obligation to assist a claimant in the development of his case, a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board further observes that this case was remanded in May 2012, in pertinent part, to undertake additional efforts to (i) secure service treatment and National Guard records of the Veteran; (ii) secure any records of the Veteran regarding long term disability/Workers' Compensation claim filed in 1996 or 1997; and (iii) obtain an addendum to a November 2008 VA spine examination report. Thereafter, (i) additional service treatment records were obtained from the Office of the Texas Adjutant General; (ii) additional records associated with a 1996 Workers' Compensation claim were received; and (iii) an addendum to the November 2008 VA spine examination report dated in May 2012 was received. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries, supra. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. During his March 2012 hearing, the Veteran asserted that he initially experienced back pain during physical training and other field activities in service that required lifting heavy equipment. A review of the Veteran's available service treatment records does not show that the Veteran complained of, or was treated for, symptoms associated with a back disorder. Private medical records from J. M. Barrash, M.D, dated from September 1995 to June 1998 show that the Veteran was said to have initially injured in back in September 1995, wherein he had reached down and felt a pop in his back. According to a history taken at the time, he had a history of a back strain approximately two years earlier. In January 1996 he underwent L4-5l left laminotomy and diskectomy and L5-S1 right laminotomy and diskectomy. An April 1997 letter from Dr. Barrash suggest that he was treated for a back problem and had gone before the Workers' Compensation Board on April 15, 1997. He was discharged from medical treatment in June 1998. A report of medical evaluation from the Texas Workers' Compensation Commission, dated in October 1996, shows that the onset of the Veteran's disability was said to have been in September 1995 when he had felt a pop in his back and was diagnosed with lumbar herniated nucleus pulposus. Private medical records from the Kelsey Seybold Clinic, dated from September 2004 to November 2008 show that the Veteran continued to be treated intermittently for symptoms associated with a back disorder. A history of two back surgeries was indicated. In support of his claim, the Veteran submitted signed statements from fellow service members, A. L. and M. R., dated in March and June 2005, respectively. A. L. stated that, from December 1987 to July 1990, he and the Veteran had shared a room, and that he had often accompanied the Veteran to sick call regarding his back pain. M. R. stated that he had been the Veteran's section chief and had given permission for him to go to the hospital on a regular basis for treatment for back problems. A VA examination report dated in November 2008 shows that the Veteran reported experiencing back pain during basic training exercises in 1984, and that he was frequently treated for ongoing back pain in 1990. He described being treated conservatively. He added that the pain continued following service, and was exacerbated in 1995 when his back popped out when reaching down at work. He was eventually found to have herniated disks and had back surgery in 1996. His symptoms improved and he returned to work at the Post Office, but re-experienced back symptoms and had additional surgery in 2004. Physical examination of the Veteran revealed a diagnosis of degenerative disc disease of the lumbar spine and spondylolysis of L5/S1. The examiner opined that it was less likely as not that the back disability was caused by or a result of any incident or event in service. The examiner explained that the Veteran had been evaluated during service for a back disability, but no records were available. There was no history of radiculopathy or neuropathy during service. After service, there were no apparent residuals until 1995 when he reached down and hurt his back. Associated records in 1995 had revealed a reported one and a half to two year history of a back strain. The examiner added that there had been no medical records evidencing chronic back problems prior to 1995. There was also no evidence of any significant in service to cause his current back disability. In a May 2012 addendum to the November 2008 VA examination report, the same VA examiner opined that the Veteran's current back disability was less likely as not (less than 50 to 50 probability) related to service or had its clinical onset or is otherwise related to service. The examiner explained that there was no evidence to sustain any chronic back disability after separation in 1992. He was said to have had a back strain in service without leading to a chronic condition after separation. The private medical records had shown the onset of back pain in 1995, when he had reached down and hurt his back at work and was found with disc disease and radiculopathy. Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection. In this regard, the Veteran's available service treatment records are completely silent as to any diagnosis of or treatment for symptoms associated with a back disorder. Following service, the private medical records suggest that the Veteran had a one and a half year history of a back strain prior to his September 1995 back injury. These records, however, do not provide an opinion relating the diagnosed back injury to the Veteran's periods of active service. The Board finds probative the May 2012 opinion of the VA examiner that stated that the Veteran's current back problems were less likely related to active service. This opinion considered the reported in-service back pain, but concluded that such was unrelated to the eventual onset of disability in September 1995. This opinion is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board recognizes the contentions of the Veteran and his fellow service members that he experienced back pain in service, and that his current back disability is related thereto. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. While the Veteran is competent to describe that which he experienced in service and thereafter, any contentions that his current back disability is related to active service is outweighed by the remaining evidence of record. Records from Dr. Barrash reflect initial back injury following service. It is apparent that the Veteran sustained a significant back disability in the mid 1990s following a work related injury. There was no mention of aggravation or exacerbation of pre-existing back disability. It seems likely that significant pre-existing low back disability would have been mentioned by examiners if such existed. To the extent the Veteran had continuous back pain since service, the Board finds that it did not represent the presence of chronic disability. Given the absence of evidence in support of the Veteran's claim, for the Board to conclude that the Veteran has the asserted back disability as a result of service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993). As such, the evidence in this case weighs against the claims of service connection for residuals of a back injury. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). ORDER Service connection for chronic back disability is denied. REMAND In the May 2012 remand, the Board noted that the Veteran had testified that while in service, other soldiers woke him up and told him he snored too loudly, and that after discharge, he noticed he was constantly tired. The Veteran had also testified that a few years after discharge, sleep studies perform in 2004 or 2005 revealed a diagnosis of sleep apnea. In light of the evidence and the Veteran's testimony, the Board directed that the Veteran be afforded a VA examination so as to determine whether he had a diagnosis of obstructive sleep apnea, and if so, whether it at least as likely as not had its clinical onset in service or was otherwise related to active service, including claimed exposure to environmental hazards during the Persian Gulf War in service. A VA examination report dated in January 2013 shows that the examiner concluded that the verified obstructive sleep apnea (diagnosed in 2006) was less likely as not related to or had its clinical onset in service. The examiner explained that while the Veteran could give historical statements that he had symptoms of sleep apnea (excessive snoring, daytime sleepiness) during service; there was no clinical evidence of diagnosis or treatment for this condition until well after service in 2006. The examiner referred to the August 2008 RO rating decision and reasoned that unless the Veteran could come up with proof (not presently in the claims file) that he had been seen at a military treatment facility for these complaints, there is no evidence. The examiner also concluded that obstructive sleep apnea was not covered by the three types of qualifying chronic disabilities relating to the Persian Gulf. The Board finds that the January 2013 VA examiner did not thoroughly discuss the Veteran's reports that the symptoms associated with his current obstructive sleep apnea had begun in service and continued to the present. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Moreover, the additional service treatment records obtained as a result of the Board's May 2012 Remand include a March 1989 Medical Record - Nursing Assessment And Care Plan that shows that in conjunction with treatment for pilonidal disease, the Veteran reported trouble sleeping manifested by occasional insomnia. The VA examiner did not comment on whether this reported sleep disturbance, coupled with the Veteran's competent testimony, could be related to the currently diagnosed obstructive sleep apnea. As such, a new examination is required. Finally, as this matter is being remanded as set forth above, any additional VA treatment records of the Veteran for his asserted obstructive sleep apnea should also be obtained. See 38 U.S.C.A. § 5103A(b), (c) ; 38 C.F.R. § 3.159(b) ; see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran for treatment of his asserted obstructive sleep apnea that are not yet associated with his claims file. All records obtained must be associated with the Veteran's claims file. 2. The RO/AMC shall obtain an addendum to the July 2011 VA examination report, preferably from the original examiner. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The examiner is requested to provide an opinion as to whether it is at least as likely as not that any current obstructive sleep apnea is etiologically related to any incidents of the Veteran's period of active service, to specifically include the March 1989 reported occasional insomnia. The examiner must consider the Veteran's competent statements as to the onset and continuity of all symptomatology. See Dalton, 21 Vet. App. at 23 (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service medical records to provide a negative opinion). If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, citing to the lay evidence, as well as, other evidence in the record. If the original examiner is no longer available to provide the requested opinions, another equally qualified VA examiner shall provide the necessary additional opinions. The need for an additional examination of the Veteran is left to the discretion of the VA examiner. 3. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs