Citation Nr: 1327136 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-24 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a sleep disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active duty from December 1965 to December 1968. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. VA's computerized claims processing system (Virtual VA) includes one additional document - a June 2013 Appellant's Brief - which the RO did not consider in support of this claim. Given that its contents essentially mirror those of a June 2013 Statement Of Representative In Appeals Case, however, a remand for the RO to consider the brief in the first instance is unnecessary. FINDING OF FACT A sleep disorder was not incurred in or aggravated by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a sleep disorder are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). The RO provided the Veteran VCAA notice by letter dated December 2006. The RO sent this letter before initially adjudicating the Veteran's claim. It is therefore timely. This letter satisfies the content requirements noted above. It informed the Veteran of the evidence needed to substantiate his claim and identified the type of evidence that would best do so. It included all necessary information on disability ratings and effective dates in the event service connection is granted. It identified the evidence the RO requested and/or received in support of the Veteran's claim and the evidence it was responsible for securing. It indicated that the RO will make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identifies its source(s), but that it is the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of these claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). He does not assert that VA failed to comply with VCAA's notice provisions. The RO also satisfied its duty to assist the Veteran in the development of this claim by trying to secure and associate with the claims file all documents the Veteran identified as being pertinent to his claim, including service and post-service treatment records and information from the Social Security Administration (SSA). With regard to Southampton Medical Associates, however, an employee responded that they had no records for the Veteran. She suggested contacting another facility, whose records are now in the claims file. The RO did not afford the Veteran a VA examination or obtain a medical opinion in support of this claim. Under 38 U.S.C.A. § 5103A(d), VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims file contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Evidence of a link between current disability and service must be sufficient and, depending on the nature thereof, may include an assertion by the Veteran linking the two. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that a conclusory, generalized statement relating an in-service illness to present medical problems is not sufficient to necessitate obtaining a VA examination and that medical examinations are not to be routinely and automatically provided to all veterans in disability cases involving nexus issues). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. at 83. In this case, as explained below, there is no medical evidence and only the Veteran's generalized lay statements suggesting a nexus between the sleep disorder, characterized as severe obstructive sleep apnea, and active service which ended in December 1968. The Veteran through his representative has essentially argued that his mere subjective assertion of a service connection, based on "subjective complaints," is sufficient to trigger VA's duty to provide him with a medical examination. June 2013 Statement Of Representative In Appeals Case. A review of the claims folder does not indicate any information under the law that would necessitate a VA medical examination. The Veteran reported such lay-observable sleep symptoms beginning in the 2000s and he is not competent to express an opinion as to whether there is a causal relationship between those symptoms and his military service over 30 years earlier. The Veteran does not assert that there are any other outstanding records that must be obtained in support of this claim. The appeal is developed and ready for appellate review. Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). Analysis When deciding claims, the Board is required to consider all potential bases of entitlement, including direct, presumptive and secondary. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The Board is also required to address all arguments advanced by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Veteran seeks service connection for a sleep disorder on a direct basis, as related to his active service. He does not claim that this condition developed secondary to his service-connected disabilities, considered individually or collectively. In his initial application for compensation received in October 2006, he indicated that he could not sleep and that that condition began in May 2001 and necessitated treatment through November 2006. In written statements dated in March 2007, March 2008 and November 2008, he attributed his sleeping difficulties to the in-service stressors he reported to support his posttraumatic stress disorder (PTSD) claim. He claims that he was having sleeping difficulties in the early 2000s, just prior to having a heart attack (occurred in 2001), but began taking medication for those difficulties in 2005. He has submitted a written statement from his spouse, B.P., dated in January 2009, confirming that the Veteran has had trouble sleeping and other problems. According to B.P., the Veteran never talked about his wartime experience, but she knew he was troubled as a result. He has also submitted a written statement from D.A., a long-time friend who is trained in personal health care and works in the field of human behavior. According to D.S., who did not specifically refer to the Veteran's sleeping difficulties, the Veteran came home from the war a different person, with a changed personality and changed behavior, in that he was unhappy, depressed and very argumentative. Considering these lay statements in conjunction with all other pertinent evidence in the claims file and applicable law and regulations, the Board finds that the preponderance of the evidence is against a grant of this claim. The medical evidence of record clearly documents the Veteran's sleeping difficulties (nightmares, insomnia, fatigue have been attributed to his PTSD and are contemplated in the 50 percent evaluation assigned that disability. This evidence also documents that the Veteran has severe obstructive sleep apnea, the symptoms of which are distinguishable from those related to the PTSD (nighttime snoring, leg movements, respiratory disturbances); however, it does not include an opinion relating this disorder to the Veteran's active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (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). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises or authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of 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 diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When certain chronic diseases are at issue, including arthritis or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. Savage v. Brown, 10 Vet. App. 488, 495-97; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Veteran served on active duty from December 1965 to December 1968. During this time period, including on enlistment and separation examinations, he did not report or receive treatment for sleeping difficulties. In November 1968, during the separation examination, the Veteran reported that he had not had frequent trouble sleeping and the examiner noted a normal clinical neurologic evaluation. The Veteran does not allege that he reported or received treatment for sleeping difficulties prior to the 2000s. Indeed, according to the medical evidence of record and information from SSA, more than three decades after his discharge from active service, he began reporting nightmares of his service in Vietnam, insomnia and general sleeping difficulties. Since 2007, medical professionals have discussed these difficulties in conjunction with the Veteran's mental health problems and prescribed the Veteran various medications to help him sleep. In 2007 and 2008, medical professionals occasionally noted improvement secondary to such medication. In April 2007, the Veteran underwent a consultation at a private sleep disorders center, during which he reported that he had snored most of his life, but that his spouse had been complaining about the snoring for the last one or two years. According to the spouse, he occasionally woke himself up by snorting. The Veteran reported normal sleep during childhood, significant weight gain since his 20s and 30s (went from 180 to 230 pounds), an automobile accident five years prior to the consultation, during which he may have been drinking and became tired, and a present state of sleepiness. The physician recommended a polysomnogram and weight reduction. A physician confirmed severe obstructive sleep apnea on polysomnogram conducted the next month. Since then, almost always during mental health evaluations, the Veteran has occasionally reported continued sleeping difficulties, albeit improved. During treatment visits, no medical professional related these difficulties to the Veteran's active service. In addition, as the March 2012 Decision Review Officer decision indicates, the RO contemplated these difficulties in the 50 percent evaluation it assigned the Veteran's PTSD and the Veteran is currently in receipt of compensation based on the 50 percent evaluation. The Veteran nonetheless claims that he is entitled to service connection for a sleep disorder, presumably manifested by symptoms separate and distinct from those associated with his PTSD, on the basis that the disorder is related to his active service. The Veteran is competent to report lay-observable facts in support of his claim, including, for instance, that he has difficulties sleeping and that those difficulties initially manifested in the 2000s. But in this case, because he has no special training or expertise in medicine, he is not competent to attribute these difficulties to his active service. See Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1336; Barr, 21 Vet. App. at 303; Davidson v. Shinseki, 581 F.3d at 1313. In the absence of competent and credible evidence linking his sleep disorder to his active service, the Board finds that such disorder was not incurred in or aggravated by such service. Based on this finding, the Board concludes that the criteria for entitlement to service connection for a sleep disorder are not met. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the evidence is not in relative equipoise. The benefit-of-the-doubt rule is therefore not applicable. ORDER Service connection for a sleep disorder is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs