Citation Nr: 1331665 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-18 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for residuals of fracture to the left wrist/hand, to include arthritis. 3. Entitlement to service connection for vertigo. 4. Entitlement to service connection for nose, sinus, and throat problems. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and M.H. ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A hearing before the undersigned was held at the RO in May 2013. The hearing transcript has been associated with the claims file. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The issues of service connection for residual of fracture, vertigo, and nose/sinus/throat problems are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Sleep apnea did not begin in service and is not related to service. CONCLUSION OF LAW The criteria for service connection of sleep apnea have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection The Veteran seeks service connection for sleep apnea. He contends that the sleep apnea is due to service, to include exposure to gas during training. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). A determination has been made that the Veteran's service treatment records are "fire-related," indicating that his service records were destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The analysis below has been undertaken with this heightened duty in mind. The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The May 1955 separation examination record reflects normal clinical findings for all systems and no histories indicative of sleep apnea. A September 1998 private treatment record indicates that the Veteran was seen for "very loud" snoring and cessation of breathing. The record adds that the Veteran "ha[d] not fallen asleep while stopped at a red light 'in a number of years." After examination, he was assessed with probable sleep apnea and scheduled for a sleep study. The sleep study confirmed the diagnosis of sleep apnea. See September and October 1998 Sleep Disorder Clinic treatment records. Service connection is not warranted for sleep apnea. Initially, the Board notes that the evidence does not suggest that the sleep apnea was present in service. The Board acknowledges that the service treatment records are not available. The Veteran has never claimed he incurred the sleep apnea or exhibited symptoms indicative of sleep apnea during his military service, however; rather, he has generally reported that it began in approximately 1992. See, e.g., November 2007 claim; May 2013 hearing transcript. The Board acknowledges that the Veteran reported that the sleep apnea "originated during" service in October 2008. The Board finds this history is less credible, and thus less probative, than the otherwise consistent histories provided by the Veteran that the sleep apnea began many years after service. Thus, the Board finds the Veteran's sleep apnea was not present during service. Furthermore, the evidence does not contain any competent evidence linking the sleep apnea to service. The Board acknowledges that the Veteran believes the sleep apnea was the result of in-service gas exposure during trainings. The record does not include any medical evidence suggestive of such a link, such as an opinion or medical study, and the Veteran is not competent to determine such a link exists: that is a determination that requires specialized medical knowledge. Davidson, 581 F.3d at 1316. In the absence of probative evidence of a link to service (either through date of onset or causation), service connection is not warranted; the Veteran's claim is therefore denied. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letter dated in December 2007. Furthermore, VA has notified the Veteran of the unavailablily of the service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file, and the appellant has not contended that there are outstanding, available records. The Board acknowledges that a VA examination was not conducted for the claim. None is required, however, because the record does not contain competent evidence suggesting that the sleep apnea began in service or may be associated to service. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Service connection for sleep apnea is denied. REMAND Further development is needed on the claim of service connection for residuals of fracture. Based on the competent evidence of injury during service and current symptoms affecting the injured area, a VA examination with opinion is needed to determine whether the Veteran has a residual disorder. See 38 U.S.C.A. § 5103A(d). A VA examination with opinion is also needed to determine whether the Veteran has vertigo, or another disorder manifested by dizziness, due to service based on the Veteran's history of episodes of dizziness since service. See 38 U.S.C.A. § 5103A(d). The Board acknowledges that the record includes an opinion indicating that the Veteran has vertigo related to service. See May 2013 K.W. statement. This opinion was written by a layperson, however. The author of the opinion did not provide a rationale for the opinion, and, although the author works at a medical office, there is no indication that the author is competent to offer such an opinion. Thus, another opinion is needed. Finally, a VA examination with opinion is needed to determine whether the Veteran has a disorder manifested by nose/sinus/throat problems due to service. The Board acknowledges that a private pulmonologist provided a positive nexus opinion. See June 2013 L.C. opinion. The pulmonologist did not provide an adequate rationale for the determination, however. Thus, another opinion is needed. See 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket. Expedited handling is requested.) 1. Obtain any outstanding VA treatment records. Ask the Veteran about the existence of any non-VA treatment records. Request any reported records. 2. After the completion of the foregoing, schedule the Veteran for examination to determine whether there is any residual of the reported fracture to the left wrist/hand. The examiner should review the claims file and state whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran has any residual of the reported in-service fracture. 3. Schedule the Veteran for examination to determine the nature and likely etiology of the reported vertigo. The examiner should review the claims file and any records located on Virtual VA. The examiner should state whether the Veteran has vertigo, or any other disorder manifested by episodes of dizziness. For any diagnosed disorder, the examiner should state whether it is at least as likely as not (50 % probability) that the disorder began in or is causally related to service. The examiner should provide an explanation for any opinion provided. 3. Schedule the Veteran for examination to determine the nature and likely etiology of the nose, sinus, and throat problems. The examiner should review the claims file and any records located on Virtual VA. For any diagnosed disorder, the examiner should state whether it is at least as likely as not (50 % probability) that the disorder began in or is causally related to service. The examiner should provide an explanation for any opinion provided, with discussion of the June 2013 pulmonologist opinion and evidence of post-service exposure to asbestos. 4. Thereafter, readjudicate the appellant's claims. If any benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs