Citation Nr: 1335636 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-02 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a spine disability, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from November 1977 to November 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service connection for low back pain, and denied service connection for sleep apnea and stomach pain. In August 2010, the Board reopened the previously denied claim, and remanded the claims for service connection on the merits for a low back disorder, sleep apnea, and a gastrointestinal disorder to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further development. Remand was again required in an April 2013 Board decision. This decision is rendered entirely based on electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS); there is no physical claims file. The issue of service connection for a gastrointestinal 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. Currently diagnosed sleep apnea was not first manifested on active duty service or for many years after; the preponderance of the competent and credible evidence of record is against a finding that sleep apnea is related to military service. 2. The currently diagnosed chronic spine disability was not first manifested on active duty or for many years after; the preponderance of the competent and credible evidence of record is against a finding that a spine disability is related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection of sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2013). 2. The criteria for service connection of a spine disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. August 2005 and March 2006 letters 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). The March 2006 letter 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 Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA examinations were afforded the Veteran in May 2011 and July 2013; the examiners made all required clinical findings and rendered requested opinions along with sufficient rationales. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). While the May 2011 examination lacked some information required for complete adjudication of the claims, with regard to the opinions offered and findings made, the examinations are fully adequate with regard to the issues decided herein. 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). Analysis Service connection will be granted if it is shown that the veteran suffers from a 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 the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). A separate presumption of service connection is applicable for a chronic disabilities resulting from an undiagnosed illness that became manifest either during active service in the SWATO during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i) Extension of Statutory Period for Compensation for Certain Disabilities Due to Undiagnosed Illnesses and Medically Unexplained Chronic Multi-Symptom Illnesses, 76 Fed. Reg. 81,834 (Dep't of Vet. Aff. Dec. 29, 2011). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of "qualifying chronic disability," a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service-connection. 38 U.S.C.A. § 1117. An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). A "qualifying chronic disability" is defined, in part, as an undiagnosed illness. 38 C.F.R. §§ 3.317(a)(2)(i)(A). Signs or symptoms involving sleep disturbances or joint pain may be manifestations of an undiagnosed illness or a chronic multisymptom illness. 38 C.F.R. § 3.317(b)(5, 9). Even after the consideration afforded above, however, compensation will not be paid if: (1) there is affirmative evidence that an undiagnosed illness either was not incurred during active service, or (2) there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event, or (3) there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The veteran, having served in the Southwest Asia Theater of operations during the Persian Gulf War, is entitled to this presumption. Service personnel records verify service in Saudi Arabia from September 1990 to April 1991. 38 C.F.R. § 3.317(e). The Board has determined that neither the chronic disease presumption under 38 C.F.R. § 3.307 nor the Persian Gulf presumption under 38 C.F.R. § 3.317 are applicable here, however. Neither sleep apnea nor any of the diagnosed spine conditions (degenerative disc disease, spondylosis, lumbar radiculopathy, and lumbar stenosis) are among the listed chronic diseases in 38 C.F.R. § 3.309, and hence the presumption of 38 C.F.R. § 3.307 may not be applied. The Board notes that one private doctor speculated that there might be arthritis of the spine present following a May 2005 x-ray, but the interpretation of that film was not definite. No doctor appears to have formally diagnosed arthritis, which is a listed condition. However, even if present, the arthritis was not shown until 2005, well outside the one year presumptive period for arthritis as a chronic disease. 38 C.F.R. § 3.307. Further, sleep apnea and the variously diagnosed spine conditions represent known and established clinical diagnoses, as shown in the medical evidence discussed below. The signs and symptoms reported by the Veteran are associated by the medical evidence with those diagnoses, and hence are not themselves undiagnosed illnesses or caused by an unknown illness. The Secretary has not determined that the diagnosed conditions merit a presumption of service connection for Persian Gulf Veterans. Simply put, neither sleep apnea nor any diagnosed back disorder are a "qualifying chronic disability" for purposes of 38 C.F.R. § 3.317. The remaining avenue to service connection, then, is direct, based on a showing that some disease or injury in service caused or aggravated the current disability. 38 C.F.R. § 3.303. Sleep Apnea The Veteran alleges that sleep apnea, formally diagnosed in April 2005, was first manifested on active duty service, and has continued to the present day. He and his wife have testified regarding his loud snoring for many years as evidence of undiagnosed sleep apnea prior to and since April 2005. A review of service treatment records (STRs) does demonstrate complaints of and treatment for respiratory obstruction and associated loud snoring prior to May 1989. The Veteran was repeatedly diagnosed with tonsillitis, and the inflamed nodes were causing physical obstruction of his breathing, leading to "drooling, severe snoring, and night wakefulness" and "marked difficulty with sleeping secondary to snoring, which others notice." In May 1989, a tonsillectomy was performed. Subsequent STRs do not indicate continued sleep or snoring problems; sleep apnea is not diagnosed at any point in service records. In April 2005, VA records reflect that the Veteran sought a referral for a sleep study and evaluation for apnea. He reported that he had been "told since 1993 or 1994 he has breathing cessation problems." At the VA Gulf War clinic in March 2005, he indicated that his private doctor has suggested the sleep study. No reference to this is seen in private records. A VA examination was performed in May 2011; the Veteran repeated his allegations of trouble sleeping and snoring in service, but denied any assessment or treatment in service. The claims folder was reviewed. Continued snoring and daytime fatigue were noted, as was the formal diagnosis of sleep apnea in 2005. The examiner opined that it was less likely than not that sleep apnea was related to service. The possible etiologies for apnea were well established, and did not include any Gulf War illness; they were obesity, crowded oropharyngeal space, and a severe central nervous system injury, such as significant head trauma or stroke. Here, the examiner opined that the sleep apnea was due to obesity, and the Veteran's weight gain since service separation. He also noted the lack of any evidence of sleep apnea in STRs. In April 2013, the Board remanded the claim for consideration of the impact of the Veteran's in-service tonsil problems and any role they may have played in the development of sleep apnea. The examination was accomplished in July 2013; the claims folder was reviewed. The Veteran reported that he had slept well until he went overseas during the Gulf War in 1990. After that deployment, his wife complained of snoring and breathing cessation. He did not feel well or rested. The examiner noted the tonsillectomy in service, but opined such was unrelated to the current apnea. There was significant airway obstruction with the chronic tonsillitis, and the Veteran was a loud snorer. His surgery "definitively treated and removed" the obstruction. There were no subsequent notations of snoring or sleep difficulties in STRs. The examiner did note some breathing problems following the Gulf War, but these were self-limited and associated with specific incidents or infections, such as bronchitis in 1996. The examiner considered the Veteran's lay statement of problems since 1993, but the noted the lack of corroborating findings in STRs and the actually contradictory notations at separation. Given the thoroughness of the service records in reporting symptomatology and complaints, some documentation of his report would have been expected. The Board finds that service connection for sleep apnea is not warranted. The condition was not manifested until almost 8 years after service; the competent and credible evidence of record does not show manifestations or signs of apnea on active duty. As found by the May 2011 examiner, apnea is due to the Veteran's documented weight gain since separation from service. While snoring and sleep problems are shown in the 1980's such are associated with the physical obstruction of the throat by chronically swollen tonsils. The medical records indicate that the May 1989 surgery resolved these problems. The Veteran made no further complaints, and no clinical observations of continued problems are noted. As the April 2013 examiner noted, given the Veteran's history of complaints regarding and treatment for snoring and sleep related problems, and his current allegation of again having problems form 1993, some reference to these problems would be expected in STRs. It is the kind of thing he did in fact report. Kahana v. Shinseki, 24 Vet. App. 428 (2011) The Veteran and his wife have competently reported that he continues to have snoring problems, and has since service. As he can observe snoring, even a layperson may report such signs and symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Snoring itself, however, does not define apnea; it can be an indicator, but there are other factors which must be considered, as discussed by the May 2011 VA examiner. Diagnosis of sleep apnea is therefore beyond the ken of the ordinary layperson. 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 etiology and onset of sleep apnea falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Even if the Veteran did resume snoring after his Persian Gulf service, as he alleges, the evidence of record does not indicate that such was a manifestation of sleep apnea. In sum, the Veteran's in-service breathing problems associated with his tonsil infections resolved completely with service. There are no treatment records corroborating his current allegations of breathing problems from 1993 on, and STRs in fact contradict his current allegations, showing denials of any chronic problems at the time of his separation. Current sleep apnea arose independent of any in-service injury or disease, after service. The Board has considered the allegation that sleep apnea is related to Gulf War service, even if the condition does not fall under the 38 C.F.R. § 3.317 presumptions. However, the sole competent and credible evidence of record on that point is negative. The May 2011 VA examiner noted the lack of any known relationship to Gulf War service, and noted the acknowledged causes of apnea. The Veteran's own opinion is not competent evidence, as he is a layperson lacking the knowledge and training required to analyze the evidence and draw such a conclusion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for sleep apnea is not warranted. Spine Disability The Veteran alleges that when performing a demonstration air assault, he injured his left leg and back. Not long after, he states that he was trying to shift heavy equipment and further strained his back. He attributes the currently diagnosed spine conditions to these events, and cites his repeated in-service treatment for lower extremity problems as evidence of back problems since that time. A review of STRs reveals that in May 1979, the Veteran was treated for back pain which began two weeks prior after he tried to lift something heavy. There is no reference to any injury from an air assault training. In March 1983, no current or past back problems were reported at the Veteran's periodic examination. STRs do document various lower extremity problems, to include possible stress fractures, ankle sprains, and shin splints. From November 1986, the Veteran had a physical profile related to his legs. However, no treatment of his leg problems refers to or includes the back. The Veteran was treated for a complaint of back pain in March 1996, but this was associated with a bronchitis infection, and no diagnosis of any discrete back problem was noted. In September 1997, a retirement physical was given. Physical examination was normal; subjectively, the Veteran left the box related to back pain blank. Post-service records include several lay statements from friends and family reporting worsening back and leg pain over periods since approximately 1998 or 1999. None specify a date of onset for the problems, or relate witnessing any injury. The earliest notation of back pain in post-service records comes in May 2000, when VA records reflect complaints of a sharp shooting pain in the left upper back. This may have been related to March 199 complaints of left rib pain; both were described as neuropathic. The back/rib pain was noted to be resolved in July 20000, and there was no back pain in October 2000. Complaints of and treatment for a specific pain problem begin in August 2004, when the Veteran reported to VA doctors that he was experiencing back and leg pain since bending to lift a heavy weight. Although no date of onset is reported, the impression given is that the problem is a recent one. The Veteran denied a history of injury or prior back problems. He asserted in 2007 that his pains had begun in 1991, during service. A back brace was issued at that time; epidural injections had been helpful in relieving symptoms. VA treatment records continue to show complaints of low back and radiating leg pain. Private treatment records reveal that in April 2005, an MRI showed degenerative disc disease. In May 2005, the private doctor referred to back pain being present for "quite some time." Epidurals were administered for pain relief. Although one examiner indicated the possibility of arthritic changes, x-rays did not reveal such. A May 2011 VA examination indicated that the Veteran reported leg pain from shin splints in service, and a post-service MRI showed degenerative disc disease. The Veteran complained of current constant, sever low back pain. The examiner opined that it was less likely than not the current low back disc disease was related to service. STRs showed no treatment for or diagnosis of disc disease, and the sole documented back problem in service, from the 1970's, was muscular in nature. The Veteran's exit examination was normal, and a back condition was not otherwise shown in STRs. A second VA examination was afforded the Veteran in July 2013; the claims folder was reviewed. Disc disease, spondylosis, and radiculopathy were diagnosed, as well as stenosis. The Veteran reported an in-service back and leg injury during an air assault demonstration, but stated his duty prevented him from seeking treatment. The examiner opined that it was less likely than not that a current back disability was related to service. The examiner reasoned that despite the assertions by the Veteran of pain early in service, such was related to a muscle injury and did not impact the lumbar spine, and interpretation supported by subsequent STRs showing no findings or complaints. Further, post-service records showed no chronic problems until mid-2004, although lay statements would indicate an earlier onset. In short, the examiner found the documentary evidence, in the form of STRs and private and VA records, more persuasive than the contrary lay statements. The types of injuries described in service were consistent with the required treatment. The Board must agree with the July 2013 VA examiner. STRs do reflect isolated treatment for a 1979 muscular injury, but subsequent records are silent with regard to the back until 1996, when pain associated with an infection was noted. There is simply no evidence of a chronic back condition in service, despite the Veteran's assertions. The Board stresses that it is not merely the absence of corroborating evidence it finds persuasive, Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), but also the affirmative evidence of a lack of back problems, such as on periodic examination. Additionally, the Board cannot credit the Veteran's allegation that the repeated treatment for leg problems in service represent a manifestation of a back problem. The STRs clearly discuss only leg problems, without mention of back complaints or symptoms; some such would be expected if, as the Veteran now claims, he was seeking treatment for radiating leg pain related to the back. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The competent and credible evidence of record establishes that the current back disability first arose in mid-2004, following a lifting injury consistent with the Veteran's employment. Back problems prior to that date are shown to be acute in nature, and resolved with no lasting effect. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a spine disability is not warranted. ORDER Service connection for sleep apnea is denied. Service connection for a spine disability is denied. REMAND With regard to the remaining claim of service connection for a gastrointestinal disorder, further remand is required to comply with VA's duty to assist the Veteran in substantiating his claim. The May 2011 and July 2013 examinations have focused on the current diagnoses of diverticulosis and gastroesophageal reflux disease. However, the Veteran has also reported, and medical records tend to support such, recurrent periods of diarrhea during and after service. No examiner has clearly addressed the underlying cause of this particular symptom. The Veteran's claim includes consideration of whether there is present an undiagnosed illness manifested by signs or symptoms of diarrhea. A finding or conclusion as to whether there is any such condition present is therefore required. On the current record, diarrhea cannot be associated with any known diagnosis; doctors have simply not addressed that aspect of the claim. On remand, such is required. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file updated VA treatment records from the VA Medical Center in Birmingham, Alabama, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period of May 2013 to the present. 2. Schedule the Veteran for a VA gastrointestinal disorders examination; the claims folder must be reviewed in conjunction with the examination. This may require provision of access of Virtual VA and/or VBMS records to the examiner, as there is no physical claims file. All required testing must be accomplished. The examiner must establish the frequency and severity of the reported diarrhea episodes. The examiner must then identify all current conditions of the gastrointestinal system, and must opine as to whether complaints of recurrent diarrhea may be associated with any such condition. The examiner must opine as to whether diarrhea or an underlying condition at least as likely as not was caused or aggravated by military service, to include Persian Gulf War service. If no diagnosed condition can account for the reported diarrhea, the examiner must clearly state whether diarrhea symptoms represent a manifestation of an unknown or undiagnosed disease entity. A full and complete rationale for all opinions expressed is required. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs