Citation Nr: 1519653 Decision Date: 05/07/15 Archive Date: 05/19/15 DOCKET NO. 13-05 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether there was clear and unmistakable error in a June 5, 2008 rating decision denying entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Robert L. Brown, Jr., Attorney ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from September 2001 to June 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In an unappealed rating decision of June 5, 2008, the RO denied entitlement to service connection for sleep apnea. The Veteran subsequently attempted to reopen his claim for service connection for that disability, with the result that, in a rating decision of July 2010, the RO once again denied entitlement to service connection for sleep apnea, finding that no new and material evidence had been submitted sufficient to reopen the Veteran's previously-denied claim. The Veteran then voiced his disagreement with that determination, alleging that the June 5, 2008 rating decision denying entitlement to service connection for sleep apnea was, in fact, clearly and unmistakably erroneous. In a rating decision of September 2011, the RO found no clear and unmistakable error in the aforementioned June 5, 2008 rating decision. However, in a subsequent rating decision of February 2013, the RO granted entitlement to service connection for sleep apnea, effective from December 15, 2009, considered to be the date of the Veteran's "reopened" claim. FINDINGS OF FACT 1. Service treatment records disclose that, on a number of occasions in service, the Veteran was seen for complaints of problems sleeping, exhaustion/fatigue, and excessive snoring, and that, in September 2004, he was to be sent for a "sleep study" if his symptomatology showed no improvement. 2. In a Report of Medical Assessment conducted in June 2007, coincident with the Veteran's separation from service, the Veteran complained that he didn't get much sleep "due to snoring." 3. Following a VA sleep study in March 2008, approximately nine months following the Veteran's discharge from service, the Veteran received a diagnosis of mild obstructive sleep apnea. 4. Following a review of the Veteran's records in January 2013, a VA physician indicated that the Veteran's service treatment records showed that, while in service, he complained of symptoms of sleep apnea, namely fatigue, unrestful sleep, and loud snoring, and that his sleep apnea was at least as likely as not incurred in or caused by a claimed inservice injury, event, or illness. 5. The rating decision of June 5, 2008, which denied entitlement to service connection for sleep apnea, essentially on the basis that service treatment records showed neither a diagnosis of nor treatment for sleep apnea, was neither adequately supported by nor consistent with the evidence then of record. CONCLUSION OF LAW The decision of the RO on June 5, 2008 denying entitlement to service connection for sleep apnea was clearly and unmistakably erroneous. 38 U.S.C.A. § 5112 (West 2014); 38 C.F.R. § 3.105(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to claims involving clear and unmistakable error. See Simmons v. Principi, 17 Vet. App. 104, 109 (2003); see also Livesay v. Principi, 15 Vet. App. 165 (2001). Accordingly, no further discussion of the various provisions of that Act is necessary in this case. VA has, however, fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim. As to the issue currently before the Board, there is no evidence that additional records have yet to be requested, or that an additional VA examination is in order. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, VA (including Virtual VA and Veterans Benefits Management System) and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Clear and Unmistakable Error Pursuant to applicable law and regulation, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Service connection may also be granted for disease initially diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014). Significantly, previous determinations which are final and binding, including those involving service connection are to be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision is to be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a) (2014). The United States Court of Appeals for Veteran's Claims (Court) has provided the following guidance with regard to a claim of clear and unmistakable error: In order for there to be a valid claim of clear and unmistakable error, there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied; the claimant, in short, must assert more than a disagreement as to how the facts were weighed and evaluated. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The Court in Russell further stated: Errors that would not have changed the outcome are harmless; by definition such errors do not give rise to the need for revising the previous decision. The words 'clear and unmistakable error' are self-defining. They are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior AOJ (agency of original jurisdiction) or Board decision. Id at 313-14. In determining whether there is clear and unmistakable error, the doctrine of reasonable doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b) (West 2014) is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Id. The Court has consistently stressed the rigorous nature of the concept of clear and unmistakable error. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). "Clear and unmistakable error requires that error, otherwise prejudicial, must appear undebatably." Atkins v. Derwinski, 1 Vet. App. 228, 231 (1991). "It must be remembered that clear and unmistakable error is a very specific and rare kind of error." Fugo v. Brown, 6 Vet. 40, 43 (1993). In Russell, Fugo, and other decisions, the Court has emphasized that merely to aver that there was clear and unmistakable error in a rating decision is not sufficient to raise the issue. The Court has further held that simply to claim clear and unmistakable error on the basis that previous adjudications have improperly weighed the evidence can never rise to the stringent definition of clear and unmistakable error. In the present case, a review of the record extant at the time of the aforementioned June 5, 2008 rating decision discloses that, in August 2002, while in service, the Veteran was seen for complaints of feeling exhausted and tired for a period of three months. According to the Veteran, while he often slept 10 hours at a time, he still felt tired. The clinical assessment was fatigue. Further review discloses that, in early September 2004, once again, during the Veteran's period of active military service, he was seen for complaints of problems sleeping and loud snoring, with the result that he was "tired all the time." Following evaluation, the Veteran was prescribed medication for treatment of his symptomatology. However, it was additionally noted that, should no improvement occur, the Veteran might be sent for a "sleep study." The Board observes that, in a Report of Medical Assessment conducted in conjunction with the Veteran's separation from service in June 2007, he complained of sleep problems, indicating that he didn't get much sleep "because of snoring." Significantly, approximately nine months later, following a VA sleep study, the Veteran received a diagnosis of mild obstructive sleep apnea. At the time of the aforementioned rating decision on June 5, 2008, it was noted that although VA treatment records showed a diagnosis of sleep apnea in early 2008, service treatment records failed to show any diagnosis of or treatment for sleep apnea during service. Under the circumstances, service connection for sleep apnea was denied, inasmuch as the condition was neither incurred in nor caused by active military service. Regrettably, that determination was neither adequately supported by nor consistent with the evidence then of record. Rather, based on a review of pertinent evidence, "reasonable minds" could only conclude that symptomatology representative of sleep apnea had their beginnings in service, and that the original rating decision which denied entitlement to service connection for sleep apnea was fatally flawed at the time it was made. Under the circumstances, the rating decision of June 5, 2008, was clearly and unmistakably erroneous. As noted above, service connection has now been granted for sleep apnea; essentially on the basis that symptomatology associated with that disability was first shown during the Veteran's period of active military service. ORDER The June 5, 2008 rating decision which denied entitlement to service connection for sleep apnea was clearly and unmistakably erroneous in denying service connection for that disability. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs