Citation Nr: 1336905 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 06-11 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include chronic insomnia, sleep apnea, and restless leg syndrome, claimed as secondary to service-connected disabilities. 2. Entitlement to service connection for a bilateral knee disorder (claimed as DJD and arthritis), to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active military service from July 1966 to October 1986. The appellant is the Veteran's surviving spouse. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of the case belongs to the RO in Wichita, Kansas. This case was most recently before the Board in June 2011. In September 2007, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. At the time of his death in December 2011, the Veteran had a pending appeal for the issues set forth on the title page. Following receipt of the appellant's request to be substituted as the appellant, the RO granted the appellant's request and informed her of the decision by letter dated in May 2013. Accordingly, the appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death. FINDINGS OF FACT 1. A private examiner has indicated that the Veteran's sleep apnea was present during service. 2. A bilateral knee disorder did not have its onset during the Veteran's active service, was not caused by his active service, and was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran was notified by letters, including those dated in July 2004, April 2009, June 2010, and July 2011, of the criteria for establishing service connection (including as on a secondary basis), the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. As VCAA notice was not completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). While the appellant has been substituted for the Veteran, issuance of another VCAA notice letter is not required if an adequate letter was sent to the Veteran. See VBA Fast Letter 10-30 (Aug. 10, 2010). Duty to Assist Service treatment records are associated with the claims file, as are identified VA and private medical records. In August 2013 VA obtained medical opinions that addressed the medical matters presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in this case are more than adequate. The opinions considered the pertinent evidence of record and provided a rationale for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The August 2013 opinions also addressed the questions as directed by the Board's prior remands. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). During the September 2007 Board hearing, to assist the Veteran, the undersigned asked questions to determine if there was any evidence outstanding pertinent to his claims. The undersigned also asked questions to help direct the Veteran's testimony concerning the onset of the disabilities. The undersigned also encouraged the Veteran to obtain representation to assist him with this appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Board finds that there has been substantial compliance with its April 2009 and June 2011 Board remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Significantly, as noted, in August 2013 a VA opinion that addressed the medical matters presented by this appeal was obtained. The appellant has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Applicable Laws-Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may 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 a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2010). Service connection for certain specified chronic diseases, such as arthritis, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen. The regulation which governs claims for secondary service connection, was amended during the pendency of this appeal, effective October 10, 2006. The current 38 C.F.R. § 3.310(b) sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Given what appear to be substantive changes, and because the Veteran's claim (received in June 2004) was pending before the regulatory change was made, the Board will consider the version in effect before the change, which version favors the claimant. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Board notes that although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The appellant asserts that the Veteran had a sleep disorder and bilateral knee disorder during service. She also contends that he had a sleep disorder and knee disorder that was secondary to service-connected disability. During his lifetime the Veteran had been awarded service connection for depression, Baker's cysts of both knees, arthritis of the shoulder and cervical spine, a duodenal ulcer, radiculopathy of the upper extremities, and a right foot bone nodule, with scar. I. Entitlement to service connection for a sleep disorder, to include chronic insomnia, sleep apnea, and restless leg syndrome, claimed as secondary to service-connected disabilities. At his September 2007 Board hearing, the Veteran indicated that he had problems with his sleep during service, usually a couple of days a week. He first sought treatment for his sleep problems many years following service. He also had involuntary convulsions involving his legs. He stated that he believed that his current sleep-related problems had begun during his Army service. He also attributed some of his sleeplessness to his experience with training service members who ended up being causalities of the Vietnam War. The Veteran's service treatment records contain no complaints or diagnoses related to sleep problems. The Veteran's September 1986 service retirement examination report indicated no sleep disorder; the Veteran specifically denied that he had frequent trouble sleeping on the corresponding Medical History Report. At a July 1987 VA neuropsychiatric examination the Veteran essentially indicated that he had sleeping problems. An April 1998 VA psychiatric treatment record noted that the Veteran was having trouble sleeping related to marriage problems. An October 2000 VA record noted that the Veteran complained of sleeping difficulties the prior 9 months. The assessment was sleep apnea and severe snoring. A June 2001 private record reveals that the Veteran complained of increasing fatigue and difficulty sleeping. The assessment was depression with insomnia. A May 2005 private record noted that the Veteran indicated that while on active duty he had excessive daytime somnolence, although due to other more pressing medical concerns he did not bring the matter up during service. The private physician stated that the Veteran's sleep apnea "more likely than not began at the time he began noticing some periods of excessive daytime somnolence which, per the [Veteran], occurred while he was still active duty." In August 2013 VA obtained a medical opinion that was not favorable to the Veteran's claim. The Veteran's private physician has linked his sleep apnea to active service. While the Veteran did not appear to make complaints of sleeping problems to medical personnel during service, it does appear that he did have some sleep impairment during service, as reflected in his September 2007 Board hearing testimony. Further, the Veteran did make assertions of sleep difficulties during a July 1987 VA examination undertaken shortly following service. The Board acknowledges that the August 2013 VA examiner's opinion was not favorable to the appellant's claim. While it may be argued that the competent evidence is in equipoise as to a nexus to service, in such cases, doubt is resolved in the Veteran's (appellant's) favor, 38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990), and service connection for sleep apnea is warranted. The Board notes that the Veteran's claim of service connection for a sleep disorder is broader than just the disability of sleep apnea. In this regard, a June 2001 private record appears to link the Veteran's sleep difficulty (insomnia) to his service-connected depression. However, a review of the June 2007 rating decision reveals that sleep problems and insomnia, which were discussed in the May 2007 VA mental disorders examination, are already part of the rating criteria that were used as a basis for assigning the Veteran's 30 percent evaluation for depression. The Veteran is therefore already being compensated for his insomnia symptoms. Symptoms which have been considered in assigning an evaluation for a service-connected disability may not serve as a factual basis for a separate evaluation or evaluation of another disability. 38 C.F.R. § 4.14. II. Service connection for a bilateral knee disorder (claimed as DJD and arthritis), to include as secondary to service-connected disabilities. At his September 2007 Board hearing, the Veteran indicated that he was having knee joint pain during service, but that it was not due to a specific injury but was due to the physical fitness program that he had at the time. He indicated that his knees would give out when performing knee bends. He was not seeing an orthopedist for his knee problems although he was taking some pain medications. Neither the Veteran nor the appellant has asserted that the knee arthritis resulted from combat. Service treatment records noted multiple complaints of left and right knee pain. A November 1981 service treatment record noted intercondylar osteophytes. While a March 1983 service treatment record noted a history of "intercondylar osteophytes," May 1983 X-rays of the left knee were normal. Degenerative joint disease of the knees was not noted on the Veteran's September 1986 service separation examination. At a July 1987 VA examination the Veteran complained of bilateral knee pain. X-rays of the knees were negative for any abnormality. March 1998 private X-rays revealed degenerative joint disease of the right and left knee. In January 1988 the Veteran was granted service connection for Baker's cysts of both knees. A February 2005 letter from an Air Force orthopedic surgeon reiterated the Veteran's assertions that his knee arthritis was present during service. The Air Force orthopedist did not comment as to whether the Veteran's arthritis of the knees was related to his active service. At a January 2010 VA examination, the Veteran indicated that his physical training during service had resulted in bilateral knee pain and that his knees had progressively worsened since that time. He stated that he was able to stand 15-30 minutes. The impression was early osteoarthritic changes in the right knee and degenerative changes in the left knee. The examiner indicated that the Veteran's arthritis of the knee's was not related to his military service. An August 2011 VA examiner essentially stated that the Veteran's arthritis of the knees had not been caused or aggravated by his service-connected Baker's cysts disability. The examiner also stated that there had been no evidence of degenerative joint disease of the knees until many years following service and that the degenerative joint disease of the knees was related to the aging process. In August 2013 VA obtained a medical opinion that addressed the medical matters presented by this issue. The August 2013 examiner essentially stated that the Veteran's degenerative joint disease of the knees were not related to or aggravated by his service-connected Baker's cysts. The Board finds that the preponderance of the competent and credible evidence does not show that the Veteran's arthritis of the knees is causally related to his service-connected Baker's cysts and chondromalacia disability. No examiner has suggested that such a relationship exists, and the VA examiner's specifically indicated that there was no such relationship. While the appellant has asserted that the Veteran had arthritis of the knees related to his Baker's cyst, the Board finds this statement is not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor for consideration is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. See Layno v. Brown, 6 Vet. App. 465, 496 (1994) (explaining that a layperson is competent to report only that which he or she observed). Whether Baker's cyst disability can cause or aggravate arthritis in the knees is not a not a question that can be determined by mere observation. The appellant has provided no explanation as to the nature of such alleged relationship. Given that there is no logical or obvious relationship, it is not a simple question. For these reasons, the Board finds that his opinion in this regard is not competent evidence and therefore not probative of any fact in this case. Based on the foregoing, the Board concludes that the preponderance of the competent and credible evidence shows that the Veteran's arthritis of the knees is not caused or aggravated by the service-connected Bakers cyst disability. As for direct service connection, the Veteran's service treatment records do reveal that complaints related to knee pain were noted in service. Furthermore, an August 1981 service treatment record did note that the Veteran had intercondylanr osteophytes. However, such was not shown on X-rays in May 1983 or in July 1987 shortly following service, and the August 2013 VA examiner specifically stated that there was no X-ray evidence of osteophytes during service, and such was not noted on the Veteran's service separation examination. The August 2013 VA examiner clearly attributed the Veteran's arthritis of the knees to the aging process. The post medical records do not show or contain any evidence suggesting a relationship between arthritis of the knees and the Veteran's service. VA examiners have specifically indicated that no such relationship exists, and such opinion is uncontradicted. As noted, the February 2005 letter from the Air Force orthopedist did not indicate that the Veteran's arthritis of the knees was related to his military service. As arthritis was not shown until 1998, arthritis may not be established on a presumptive basis as it was not manifested within one year from the date of the Veteran's separation from service. In essence, the appellant in this case is relying on the Veteran's own reports of in-service knee problems as a basis for awarding compensation benefits. To the extent that she argues that he had knee problems during service that were indicative of arthritis, the Board finds such statements are not competent evidence. Taking the aforementioned Davidson, Jandreau, and Layno together leads the Board to the conclusion that the complexity of the question, such as whether asserted in-service knee problems were the result of arthritis can not be determined by direct observation and is not a simple question. The appellant's or Veteran's opinion in this regard is not competent evidence and is not favorable to the claim. As for continuity of symptomatology since service, to the extent that such an assertion has been made, the Board draws attention to the July 1987 X-rays taken shortly following service that were negative for arthritis. As such, service connection for arthritis of the knees on the basis of continuity of symptomatology since service is not for application. Arthritis of the knees did not have onset during the Veteran's active service, was not caused by his active service, and was not caused or aggravated by a service-connected condition. As the preponderance of evidence is unfavorable to this claim, the Board must deny the appeal as to the issue of service connection for arthritis of the knees. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for sleep apnea is granted. Service connection for a bilateral knee arthritis is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs