Citation Nr: 1414009 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 11-27 401 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an initial rating in excess of 30 percent for depressive disorder, not otherwise specified. 3. Entitlement to an initial rating in excess of 30 percent for migraine headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from August 2000 to July 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision. In March 2012, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the Board's office in Washington, DC; a transcript of that hearing is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal herein decided. The issues of entitlement to increased ratings for the service-connected depressive disorder and the migraine headaches 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 The Veteran does not have sleep apnea. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any defect in the timing or content of such notice is not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an August 2009 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Hence, the November 2009 letter, which meets the content of notice requirements, also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the service treatment records (STRs), private treatment records, VA treatment records and examination reports. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and appearing for VA examinations. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect as to the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Finally, during the hearing the VLJ clarified the issues, explained evidentiary requirements necessary to support the Veteran's claims and the relevant responsibilities of the parties related thereto. Additionally, the VLJ left the record open for 30 days to allow for submission of additional evidence. Such actions supplement VCAA and complies with 38 C.F.R. § 3.103 . Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran's service treatment records document a problem with snoring. An October 2008 service treatment record reflects that the Veteran was to be evaluated for obstructive sleep apnea. There is no record for review of a polysomnogram conducted in this regard (and the Veteran has indicated that such record is unavailable). Subsequent to service, the Veteran contends that he has sleep apnea related to his period of service. However, we conclude that the more probative evidence establishes that the appellant does not have sleep apnea. The September 2009 report of VA examination documents that the Veteran reported that his wife noted that he snored and pauses in his breathing during his sleep. He did not feel rested on awakening in the morning and felt drowsy while at work or while watching movies. He reported that he had a polysomnogram performed the previous year (2008) which indicated that he had obstructive sleep apnea. The impression was obstructive sleep apnea with notation that "the patient agreed to bring in copy of polysomnogram on 10/03, but we have not received this. If not already in c-file, please request polysomnogram report from the patient." A January 2009 polysomnogram report documents "loud snoring but no evidence of obstructive sleep apnea." An April 2012 polysomnogram report documents "heavy snoring but no evidence of obstructive sleep apnea." It was noted that sleep efficiency was reduced. Given its review of the record, the Board finds that the claim of service connection for sleep apnea must denied. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131; see also 38 C.F.R. § 3.310. Here, the more probative evidence establishes that the Veteran does not have sleep apnea. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is a conflict in the record concerning the lay evidence and September 2009 examination report versus other evidence of record. The examiner found that the Veteran had sleep apnea and the Veteran is competent to report that fact. Further, the Veteran submitted photos of his c-pap machine and a lay statement from his brother indicating that he used the c-pap machine for his sleep apnea. However, the 2009 report must be read in context. While a diagnosis of obstructive sleep apnea was rendered, it was based in large part on the Veteran's report without any objective confirmation. Further, the examiner noted that the Veteran was to provide a copy of the polysomnogram report that showed objective evidence of sleep apnea. The Veteran did not provide a copy of the polysomnogram report and in fact has reported that a record of the polysomnogram could not be located. VA has no duty to seek to obtain that which does not exist. Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). The Veteran is competent to provide evidence of observable manifestation or symptoms and report that which he has been told. However, the positive lay and medical evidence is of little probative value when viewed in context and in its entirety. When viewed in context of the entirety of the record, the most probative evidence establishes that the appellant does not have sleep apnea. The Board again notes that this potential evidentiary defect was identified during the hearing and the file was left open to give the appellant an opportunity to submit evidence. Although evidence was received, that evidence established that the appellant did not have apnea. In sum, the Veteran does not have sleep apnea and service connection is not warranted. To the extent that he snores, there is no evidence of disease, injury or disability. The preponderance of the evidence is against the claim and there is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, on this record, claim of service connection for sleep apnea must be denied. ORDER Entitlement to service connection for sleep apnea is denied. REMAND As for the claims for ratings in excess of 30 percent for both the depressive disorder and the migraine headaches, during his March 2012 hearing and in general the Veteran essentially asserts that he has experienced a worsening of the symptoms related to his service-connected disabilities. He was last afforded VA examination addressing these service-connected disabilities in September 2009. Under the circumstances, the Board finds that current VA examinations are necessary for the purpose of ascertaining the current severity of these service-connected disabilities. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination to evaluate the current severity and manifestations of his depressive disorder. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's depressive disorder. The examiner should report all signs and symptoms necessary for rating the Veteran's depressive. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's depressive disorder. The examiner must provide a complete rationale for all the findings and opinions. 2. The Veteran should be scheduled for a VA examination to evaluate the current severity and manifestations of his migraine headaches. The entire claims folder must be made available to the examiner for review. The examiner should provide an accurate and fully descriptive assessment of the Veteran's migraine headache disability, including frequency and severity of headaches (i.e., if such headaches are productive of prostrating attacks and the frequency of such attacks) and the impact of the headaches on the Veteran's economic adaptability. The examiner must provide a complete rationale for all the findings and opinions. 3. The Veteran must be given adequate notice of the date and place of the requested examinations. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2013). 4. After completion of the above development, the Veteran's claims should be readjudicated. If the determinations remain adverse to him, he should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or 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. 2013). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs