Citation Nr: 1328384 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-13 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for sleep apnea, claimed as due to undiagnosed illness. 2. Entitlement to service connection for an undiagnosed illness manifested by memory loss. 3. Entitlement to service connection for joint pain of the shoulders, to include bilateral degenerative joint disease of the shoulders, claimed as an undiagnosed illness. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to February 1984 and from November 1990 to June 1991. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Veteran withdrew his request for a Board hearing. In December 2012, the Board remanded these claims for further development. A February 2013 VA examination addressing the presence of joint pain shows bilateral degenerative joint disease of the shoulders. Therefore, the issue pertaining to service connection for joint pain includes the right shoulder and the issues are as stated on the title page. The issue of entitlement to service connection for joint pain of the shoulders, to include bilateral degenerative joint disease of the shoulders, claimed as an undiagnosed illness, 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. The weight of the evidence is against findings that the Veteran's complaints of sleep apnea since he filed his claim in January 2007 are attributable to undiagnosed illness; that sleep apnea was demonstrated in-service; or that there is a nexus between the current diagnosis of sleep apnea and service. 2. Service connection is in effect for posttraumatic stress disorder. 3. The weight of the evidence is against a finding that the Veteran's complaints of memory loss since he filed his claim in January 2007 are attributable to an undiagnosed illness. 4. The weight of the evidence shows that the memory loss is a symptom of the service-connected posttraumatic stress disorder. CONCLUSIONS OF LAW 1. Sleep apnea, to include due to an undiagnosed illness, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2012). 2. An undiagnosed illness manifested by memory loss that is separate from the service-connected posttraumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in January, May, June, August, and October 2007, and January 2013 (pursuant to the December 2012 Board remand) of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In the January 2007 letter, VA notified the appellant of how VA determines the disability rating and effective date. The claims were most recently readjudicated in a March 2013 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The RO and AMC obtained VA treatment records, to include pursuant to the December 2012 Board remand. A January 2007 VA Persian Gulf Registry examination report shows that the claimant reported that a sleep study in 1995 revealed a diagnosis of sleep apnea. A February 2007 VA treatment record reflects that the Veteran reported that sleep apnea was diagnosed 10 years ago. At the April 2008 VA Gulf War guidelines examination, it was noted that the claimant underwent a sleep study in March 2007. At the February 2013 sleep apnea examination, the appellant reported that he first became aware of his sleep problem in 1993 due to his spouse's reporting and that he underwent a sleep study within three years of leaving active service in June 1991 at which time sleep apnea diagnosed. Pursuant to the December 2012 remand, the AMC asked the Veteran in a January 2013 VCAA letter to identify the provider of the March 2007 sleep study and all other providers of treatment for sleep apnea and authorize the release of that study and all treatment records. The appellant did not respond to the correspondence by identifying and submitting an authorization of release of records for the March 2007 sleep study, any other purported sleep study, or other treatment records for his sleep apnea, nor did he submit records from any medical providers, to include whoever performed the sleep study ostensibly done in March 2007 as well as any other alleged sleep studies. The Board recognizes that other dates that had been put forth by the Veteran for a sleep study were not specifically identified in the January 2013 notice letter. However, based on the Veteran's varying reports as to the dates of sleep studies and when sleep apnea was diagnosed, it is not clear how many sleep studies were performed or when any of them were conducted. Nevertheless, given that the notice letter invited the Veteran to identify all treatment providers relevant to his claim for sleep apnea, in addition to stressing the need for the March 2007 sleep study, the Board finds that the duty to assist in obtaining relevant records was satisfied to the extent possible in that the Veteran was clearly put on notice that the reports of any and all sleep studies would be relevant to his claim. Furthermore, VA's duty to assist the Veteran is not a one- way street. Olsen v. Principi, 3 Vet. App. 480 (1992). Rather, VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the appellant only in a passive role. If the claimant wants help, he cannot now passively wait when he has the ability - in this case the ability to authorize the release of relevant records from providers of treatment of his sleep apnea, to include the provider who conducted a sleep study purported in March 2007 - that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 406 (1991). Given the Veteran's failure to respond, no further development with regard to obtaining any additional private treatment records is necessary. The appellant underwent VA mental disorders examinations in April 2008 and November 2011 as well as VA mental disorders and sleep apnea examinations in January and February 2013, respectively, pursuant to the December 2012 Board remand. The Board notes that the VA examinations provided sufficient clinical findings so as to allow the Board to address whether the claimant has an undiagnosed illness manifested by memory loss, and whether his sleep apnea is related to active service. Therefore, the Board finds that these examinations are adequate on which to base a decision. In light of the above, the AMC complied with the directives of the December 2012 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Governing law and regulations Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). In order to establish service connection for a claimed disorder, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81,834. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d)(2). A 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non- medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service- connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, signs or symptoms involving sleep disturbances and neuropsychological signs or symptoms. 38 C.F.R. § 3.317(b). In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis Sleep apnea, claimed as due to undiagnosed illness The Veteran served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The weight of the evidence is against a finding that the Veteran's complaints of sleep apnea since he filed his claim in January 2007 are attributable to an undiagnosed illness. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Instead, the weight of the evidence, specifically VA treatment and examination reports, shows that sleep apnea is a diagnosed disorder. Accordingly, there is no basis for his claim that his sleep apnea is due to an undiagnosed illness occasioned by service in the Persian Gulf. As the appellant's claimed sleep apnea have been diagnosed as known disorder, i.e., sleep apnea and not a sleep disturbance with sleep-apnea-like symptomatology due to an undiagnosed illness, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable. The Board has reviewed all of the evidence of record, to include service treatment records and VA treatment and examination reports. The weight of the evidence is against findings that that sleep apnea was demonstrated in-service or that there is a nexus between the current diagnosis of sleep apnea and service. The service treatment records from both periods of service show no diagnoses of sleep apnea and no complaints or findings of sleep disturbance. At the April 1991 separation examination, the neurological system was normal and the Veteran denied any history of frequent trouble sleeping. The February 2013 VA sleep apnea VA examiner opined that the sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's basis was that no nexus was found in the record to link sleep apnea to active service. The examiner noted that the Veteran reported that he had a sleep study diagnosing sleep apnea within three years of leaving active service. The examiner added that if these records were located, it may be useful to review the records and the history stated in the record. The Board again notes that the Veteran was asked to identify and authorize the release of all treatment records related to sleep apnea in a January 2013 letter and that he did not respond to that letter. The Board has considered the Veteran's assertion in his January 2007 claim that his sleep apnea began in June 1991 and thus his implication that his sleep disturbance symptomatology began in June 1991. The appellant is competent to report this history of symptoms. The Board, however, does not find him credible because of his conflicting reporting as to the dates of onset and when he began treatment. Furthermore, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his sleep apnea and his military service, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that his sleep apnea is related to service. Therefore, the preponderance of the evidence is against the claim, and it is denied. An undiagnosed illness manifested by memory loss There is conflicting medical evidence on whether the Veteran has an undiagnosed illness manifested by memory loss as opposed to a diagnosed disorder. On the one hand, the April 2008 VA mental disorders examiner did not diagnose an Axis I disorder. The examiner opined that the mild memory impairment was more likely than not an undiagnosed Persian Gulf War illness. On the other hand, the January 2007 VA Persian Gulf Registry examiner opined that the memory loss may be related to sleep apnea. VA treatment records show that following neuropsychological testing in April 2007, the neuropsychologist stated that the Veteran's depression likely impacts his attention and thus his memory. The January 2013 VA posttraumatic stress disorder examiner opined that there is a greater than 50 percent probability that the appellant's memory loss is the result of posttraumatic stress disorder. The Board places little weight on the April 2008 VA mental disorders examiner's opinion because subsequent VA treatment records show diagnoses of Axis I disorders - posttraumatic stress disorder and depression. For the same reason, the Board places great weight on the opinions of the April 2007 VA neuropsychologist and the January 2013 VA posttraumatic stress disorder examiner because these opinions are supported by VA treatment records showing Axis I diagnoses. Thus, the symptom of the memory loss is already contemplated in the service-connected posttraumatic stress disorder. To the extent that it has been suggested that the memory loss is also related to sleep apnea, as noted above, the Board is denying service connection for sleep apnea and thus that disorder is also a non-service-connected disorder. In his March 2010 VA Form 9, the Veteran attributed his memory loss to an undiagnosed illness. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his memory loss and his military service, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that the Veteran's complaints of memory loss since he filed his claim in January 2007 are attributable to an undiagnosed illness. Therefore, the preponderance of the evidence is against the claim, and it is denied. ORDER Service connection for sleep apnea, claimed as due to undiagnosed illness, is denied. Service connection for an undiagnosed illness manifested by memory loss is denied. REMAND As to the joint pain in the shoulders, the Board directed the AMC to obtain medical opinions on (1) whether there is a 50 percent or better probability that the claimant's left shoulder degenerative joint disease is related to active service, to include the assault in January 1977 and/or the acute upper back strain in February 1983; and (2) for any pain in any joint can be attributed to an underlying disability, whether there is a 50 percent or better probability that such disability is related to service. The claimant has left shoulder degenerative joint disease. The Veteran was assaulted in January 1977. He suffered tender left trapezius and deltoid muscles. The diagnosis was minor multiple soft-tissue injuries. In February 1983, the appellant complained of a tender upper back. The assessment included acute upper back strain. Although the Veteran reported to the February 2013 VA examiner did not remember suffering any shoulder injuries, that examiner stated that there was no record of a shoulder injury found in the record. This opinion is not supported by the service treatment records, and another VA medical opinion is necessary. The February 2013 VA examiner diagnosed an underlying disability in the right shoulder - degenerative joint disease. The examiner did not address whether the degenerative joint disease of the right shoulder was related to active service. Thus, another VA medical opinion is required. In short, the AMC did not comply with the directives of the December 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran's claims file to be reviewed by the February 2013 VA examiner for preparation of an addendum to the examination report. If that examiner is unavailable, arrange for the claims file to be reviewed by another medical professional, and if that medical professional deems it appropriate, schedule the Veteran for another examination. The examiner should opine as to whether there is a 50 percent or better probability that the claimant's left shoulder degenerative joint disease is related to active service, to include the assault in January 1977 resulting in tender left trapezius and deltoid muscles, and/or the acute upper back strain in February 1983. The examiner should opine as to whether there is a 50 percent or better probability that the claimant's right shoulder degenerative joint disease is related to active service, to include the acute upper back strain with an increase in spasms in the right upper trapezius in February 1983. A complete rationale for any opinion offered must be provided. 2. The Veteran is to be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. After the development requested, the AMC should review the addendum to the February 2012 examination report or, if applicable, the new examination report to ensure that it is in complete compliance with the directives of this REMAND. If any addendum or report is deficient in any manner, the AMC must implement corrective procedures at once. 4. Thereafter, the AMC must readjudicate the issue on appeal. If the benefit is not granted, the appellant must be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs