Citation Nr: 1509434 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 10-33 450 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected gout (wide-spread involvement of multiple joints). 2. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected gout (wide-spread involvement of multiple joints). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to April 1993. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision that, in pertinent part, denied service connection for stress with problems sleeping. The Veteran timely appealed. In November 2011, the Veteran testified during a video conference hearing before the undersigned. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In January 2013, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Consistent with the Veteran's assertions and the record, the Board has recharacterized the appeal as encompassing the issues on the title page. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his electronic claims file. The issue of entitlement to a clothing allowance has been raised by the record in an October 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran does not have an acquired psychiatric disability, to include a depressive disorder, that was present during active service or within the first post-service year; or related to a disease or injury during active service, or to a service-connected disability. 2. The Veteran's impaired sleep is part and parcel of, and related to the service-connected gout (wide-spread involvement of multiple joints). CONCLUSIONS OF LAW 1. An acquired psychiatric disability, to include a depressive disorder, was not incurred or aggravated in service; may not be presumed to have been incurred therein; and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2014). 2. A disability manifested by chronic sleep impairment is part and parcel of, and proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through July 2009 and February 2013 letters, the RO or VA's Appeals Management Center (AMC) notified the Veteran of elements of service connection and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In each letter, the RO or AMC specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record and are adequate. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked, or was outstanding that might substantiate the claims. The case was thereafter remanded for additional development, including examination. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); and no prejudice has been identified in the conduct of the Board hearing. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. A. Acquired Psychiatric Disability In this case, the record reflects that the Veteran has not been diagnosed with any psychiatric disability. He is not entitled to direct service connection for an acquired psychiatric disability because there is no competent evidence linking a current disability to any disease or injury in active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, psychoses are considered chronic under section 3.309. Service treatment records do not reflect any findings or complaints of stress, depression, or psychiatric disorder. Nor is there competent evidence of a psychosis in service or within the first post-service year. Here, the Veteran asserts that his stress and depression are secondary to his service-connected gout (wide-spread involvement of multiple joints). VA records show an assessment of fatigue in November 2008. The Veteran's treating physician expressed concern about the Veteran's long-term use of anti-inflammatory medications for gout; and stressed the importance of not using two medications at the same time. The report of an August 2009 VA examination reflects that the Veteran took medications for pain due to gout flare-ups in multiple joints, and that the medications often made him drowsy and interfered with his work. He reportedly had trouble sleeping because of pain, and he frequently awoke during the night and was unable to go back to sleep. The Veteran reported feeling very restless and reported having terrible nightmares. A mental health screening in October 2009 was suggestive of no depression. In November 2011, one of the Veteran's co-workers reported that the Veteran was a hard worker and positive person; and that over the past few years, the Veteran suffered more and more with the physical and emotional attributes as a result of gout. The co-worker reported that the Veteran missed days from work and was unable to make it through an entire shift when he was present. In November 2011, the Veteran's wife reported that the Veteran was a very positive person with good spirit and who loved to do things for his family and for others; and that the Veteran had problems with activities because of gout, which often left him feeling mentally depressed and as if he failed his family in some way. In November 2011, the Veteran testified that his gout hurt so badly that he did not want anybody to touch it; and that even the bed sheets made him hurt. He testified that he tried to sleep and to calm down the pain, and that the gout often flared up. He testified that he had taken medications for pain since 1991; and that the pain caused stresses in his life at times when he could not function or go places, and that medications were not enough for controlling the pain. Following the Board's January 2013 remand, the Veteran underwent a VA examination in February 2013 for purposes of determining the nature and etiology of any acquired psychiatric disability. The Veteran reported no previous psychiatric history, and was surprised to be seen by a psychiatrist for examination. He denied having any psychiatric problems and specifically denied depression. He reported worsening symptoms of gout flare-ups and disturbed sleep. The examiner noted chronic sleep impairment. The February 2013 examiner opined that there is no objective evidence of a thought disorder. In support of the opinion, the examiner reasoned that the Veteran's main complaint was lack of adequate sleep due to worsening symptoms of gout, but no depression, anxiety, or psychotic symptoms. The first requirement for any service connection claim is the existence of a current disability. Brammer, 3 Vet. App. at 225. In this regard, post-service records fail to reveal any diagnosis for the Veteran's allegations of feeling stress and depressed. Therefore, absent evidence of current disability, service connection cannot be granted. Id. The Board has considered the Veteran's statements regarding stress and depression as a result of his service-connected gout (wide-spread involvement of multiple joints) as being among his current disabilities. However, the Board finds the conclusions of the February 2013 VA examiner, which are based on clinical evaluation and supported by rationale, to be more probative than references made by the Veteran. No medical examiner has made a formal diagnosis of any psychiatric disability. The February 2013 examiner found no objective evidence of a thought disorder; cognition was intact, and insight and judgment were good. Hence, a basis for compensation is not established. Because there is no evidence of a current psychiatric disability, the weight of the evidence is against the claim; and the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Sleep Disorder Here, there is no competent evidence of a sleep disorder in service. Rather, the Veteran contends that his sleep disorder is secondary to his service-connected gout (wide-spread involvement of multiple joints). As noted above, VA records show an assessment of fatigue in November 2008. In November 2011, the Veteran testified that he had trouble falling asleep, and staying asleep due to pain from gout. He is competent to describe his symptoms. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder. And the Veteran, even as a layman, is competent to proclaim that he suffered sleep disturbance. This is further corroborated by the February 2013 VA examiner's finding of chronic sleep impairment. In this regard, the Veteran's impaired sleep is considered as part and parcel of his gout (wide-spread involvement of multiple joints), which has been established as directly related to his active service. Given the nature of the disability, the Veteran's credible lay statements, and the February 2013 examiner's finding of chronic sleep impairment, the Board finds that the Veteran's impaired sleep is the result of disease or injury incurred in service. See Hodges v. West, 13 Vet. App. 287, as amended (2000). Accordingly, service connection is warranted for a disability manifested by chronic sleep impairment. In reaching this decision, the Board has extended the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107. ORDER Service connection for an acquired psychiatric disability is denied. Service connection for a disability manifested by chronic sleep impairment is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs