Citation Nr: 1333179 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-06 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a sleep disorder (previously sleep wake cycle delay syndrome). 2. Whether a May 1995 rating decision denying service connection for a sleep disorder should be revised on the basis of clear and unmistakable error (CUE). 3. Entitlement to service connection for a thyroid disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from April 1989 to December 1992. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO). A November 2008 rating decision denied service connection for a thyroid disorder. A February 2009 rating decision reopened and denied a claim for service connection for a sleep disorder. The February 2009 rating decision also addressed the Veteran's motion of clear and unmistakable error in the prior decision. In March 2013, a Board hearing was held at the RO before the undersigned; the transcript is of record. The Veteran submitted a waiver of RO consideration in conjunction with the hearing. Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of service connection for a sleep disorder. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran's virtual VA file has been reviewed. The issue of service connection for a thyroid disorder 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. In a May 1995 rating decision, the RO denied service connection for a sleep disorder. The Veteran did not appeal the decision. No new evidence was received within one year of the decision. 2. Evidence submitted since the RO's May 1995 rating decision is cumulative. 3. Neither the Veteran nor his representative have adequately set forth the alleged clear and unmistakable error, or errors, of fact or law in the May 1995 rating decision denying service connection for a sleep disorder, the legal or factual bases for such allegations, and why the results would have been manifestly different but for the alleged errors. CONCLUSIONS OF LAW 1. The May 1995 rating decision denying service connection for a sleep disorder is final. New and material evidence ssufficient to reopen the cliaim has not been received 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d) (2013). 2. The criteria for revision of the May 1995 rating decision which denied service connection for a sleep disorder, based on CUE, have not been met. 38 U.S.C.A. §§ 5101(a), 5107(a), 5109A (West 2002); 38 C.F.R. §§ 3.105, 3.151 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Letters dated August 2008 and January 2009 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The January 2009 notification also informed the Veteran of the evidence and information necessary to reopen the claim for service connection, including the basis on which the prior claim was denied in compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. At the Board hearing the Veteran testified that he was receiving ongoing treatment at the VA. Updated VA treatment records were added to the electronic claim file afterwards. The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, explained the concept of service connection, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The VLJ also left the record open for a 60 day period following the hearing to allow for the submission of such additional evidence. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103. A VA examination was conducted in April 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination was adequate as the examiner reviewed the record, evaluated the Veteran and provided an opinion as to whether the Veteran has a current sleep disorder. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. The analysis in this decision focuses on salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000). New and Material Evidence In a May 1995 decision the RO denied service connection for a sleep disorder. In June 1995 the Veteran filed a notice of disagreement. In September 1995 a statement of the case was issued. However, the Veteran did not file a substantive appeal. No evidence was received within one year of the RO decision and no additional relevant service records have been received. The decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d) (2012). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define 'new' evidence as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). At the time of the last prior denial there was no evidence of an in service disease or injury. In service, the Veteran complained of sleep difficulty, and the impression was sleep wake cycle disorder, delayed but an underlying cause (i.e. a disease or injury) was not identified. Additionally there was no evidence of a current sleep disorder post service. The Veteran was examined in January 1994 for mental disorders, which included his complaints of daytime sleepiness and difficulty falling asleep, however the examiner could find no chronic ongoing psychiatric condition and found there to be an adjustment disorder with depressed mood. Additionally there was no evidence of a nexus between any current sleep disorder and any disease or injury in service. Since the last prior denial evidence has been submitted, including VA treatment records, private treatment records, lay statements and a VA examination. The VA treatment records note the Veteran's continuous complaints of daytime sleepiness, and trouble falling asleep, but sleep studies could not find there to be a specific sleep disorder. Private treatment records pertain to his thyroid and psychiatric treatment (PTSD). Lay statements from the Veteran's mother and grandmother attest that he did not have sleep difficulty prior to service. These lay statements are cumulative, as the Veteran's own similar lay statement that his sleep difficulty did not being prior to service but began during service, was already of record at the time of the prior denial. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In April 2010 a VA examination was conducted to determine whether the Veteran had a sleep disorder (specifically sleep wake cycle delay syndrome) related to service. After evaluating the Veteran and review of the record, the examiner determined that there did not appear to be a basis for a diagnosis of circadian rhythm sleep disorder. The examiner noted that the Veteran did identify a pattern of irregular sleep and has had some intermittent disruption in schedule due to sleep issues. He also reported periods of time when sleep had not been problematic. The record suggested that sleep issues have persisted since childhood/adolescence. The Veteran stated that he was able to meet the work schedule requirements during military service until he had to serve in a camp maintenance assignment overseas; at which time he stated that he had issues with being able to wake up and was late to report on several occasions. The Veteran reported that he did best when he could work swing shift or arrange his schedule so that the major activities were planned for the middle of the day. The Veteran described problematic use of alcohol during military service, and he has continued a pattern of alcohol use. The examiner found that his use of alcohol was probably a contributing factor to irregular sleep and depression. The examiner also found that there did not appear that there was a sleep study, and the clinical record did not record any continuing treatment specific for any sleep issues. A clinical note in October 2008 noted good improvement in sleep patterns with treatment for clinical depression. The examiner concluded that it did not appear that there was a basis for a separate diagnosis of circadian rhythm disorder at this time, nor did there appear to be significant impairment in adaptive functioning due to a sleep disorder at the present time. Although the RO reopened the claim and ordered a new medical examination, the Board has the authority to deny a veteran's request to reopen previously adjudicated claim without reaching the merits based on its jurisdictional determination that the Veteran has presented no new and material evidence. Woehlaert v. Nicholson, 21 Vet App. 456, 460-461 (2007). The VA examination further established that there is no evidence of a current sleep disorder. In order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001). In this case, there is no disease or injury underlying the Veteran's sleep symptoms. It therefore cannot be said that any sleep disorder is due to a disease or injury in service. The Board finds that new and material evidence has not been received to reopen the claim for service connection for a sleep disorder. At the time of the prior decision, there was no evidence of a disease or injury to account for his complaints, no evidence of a diagnosable disease entity during service and no competent evidence of a nexus to service. The record did include his lay evidence of a continuing sleep disorder that had started during service. Since that determination, there has been lay evidence and pleadings submitted in support of the application to reopen. However, the assertion of an on-going sleep disorder is cumulative of the prior claim. The assertion that he has a disease process to account for his complaint is not competent in this case and cannot serve as a basis to reopen the claim. Moray v. Brown, 5 Vet.App. 211, 214 (1993); Jandreau v. Nicholson, 492 F.3d 1372 (2007). The recent medical evidence that establishes that he does not have an identified disease or injury merely confirms the prior evidence and is cumulative. Evidence that merely conffirms a prior fact is cumulative. In sum, the evidence submitted is not new and material and the claim is not reopened. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463,467 (1993); see also Gilbert v. Derwinski, 1 Veteran. App. 49, 55 (1990). Accordingly, the application to reopen the claim for service connection for a sleep disorder is denied. CUE In a December 2008 statement the Veteran requested to reopen his claim for service connection for sleep/wake syndrome or a possible CUE. The only prior denial of service connection for a sleep disorder was the May 1995 rating decision. As to the CUE motion, the Veteran contends that the evidence of record at the time of the prior denial showed that he was diagnosed with the sleep condition in service which should meet the criteria for CUE as the VA had this evidence but did not use it or give him the benefit of the doubt. He contends that his sleep problem did not pre-exist service and that he had good work evaluations in service until he started having sleep problems. In the February 2009 rating decision on appeal, the RO addressed the Veteran's CUE motion. The RO explained the pleading requirements for revision of a previous decision based on CUE and that the prior decision was made properly based on the available evidence of record at the time and rules then in effect, concluding that there was no CUE in the prior decision. A motion for benefits based on CUE in a prior final decision entails special pleading and proof requirements to overcome the finality of the decision. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). In order for a claimant to successfully establish a valid CUE motion, the claimant must articulate with some degree of specificity what the alleged error is, and, unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995). Here the Veteran stated that there was CUE because he was not given the benefit of the doubt. In essence his motion is that the prior rating decision should have been decided in his favor. His motion is insufficient to raise a valid CUE motion. The appellant must argue that either the correct facts were not considered or that applicable laws and regulations were not correctly applied in the rating decision at issue. Eddy v. Brown, 9 Vet. App. 52 (1996). To present a valid CUE motion, the appellant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). To prevail on the basis of CUE the alleged error must have been outcome determinative and the error must have been based upon the evidence of record at the time of the original decision. See Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002), cert. denied, 123 S.Ct. 2574 (2003). As the Veteran has not made any allegations whatsoever as to the error, or errors, in the May 1995 rating decision, he has not presented a valid CUE motion. The Veteran's motion for a revision of the May 1995 rating decision on the basis of CUE is dismissed. ORDER The application to reopen a claim for service connection for a sleep disorder is denied. The motion to revise the May 1995 rating decision on the basis of CUE is dismissed. REMAND A remand for a VA examination is required. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); See 38 U.S.C. § 5103A(d)(2); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed.Cir.2003); Wells v. Principi, 326 F.3d 1381, 1384 (Fed.Cir.2003); 38 C.F.R. § 3.159(c)(4)(i). Here there is competent evidence of a current disability, a thyroid disorder specifically hypothyroidism. The Veteran testified that he experienced a sleep disorder, muscle aches, mood, and skin problems in service. Service treatment records demonstrate sleep problems in service. However the medical evidence is insufficient to determine whether a thyroid disorder began in service or is otherwise related to service. As such an examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination to determine whether the Veteran's currently diagnosed thyroid disorder began in service or is related to service. The examiner should specifically address whether the Veteran's in service sleep problems are related to his thyroid disorder. A rationale should be provided. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed. If the examiner or medical professional does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available for review. 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a supplemental statement of the case and afford an appropriate amount of time for the Veteran and his representative to respond. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs