Citation Nr: 1520365 Decision Date: 05/12/15 Archive Date: 05/26/15 DOCKET NO. 06-01 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a sleeping disorder. 2. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran had active service from January 1971 to November 1973, from February 1991 to July 1991, and from February 2003 to March 2004. He had service in the Persian Gulf Theatre of Operation in 2003 and 2004. In October 2007, the Veteran and his spouse testified at a hearing before a Veterans Law Judge. The transcript of that hearing is of record. The Board denied the Veteran's appeal of the asthma and sleep disorder issues, inter alia, in a December 2007 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2010 decision, the Court vacated the Board's October 2007 decision as to the sleep disorder and asthma issues and remanded those issues to the Board for action consistent with the Court's decision. The reason the Court vacated and remanded these issues was that that the Veterans Law Judge who was the hearing officer that held the October 2007 hearing did not fulfill his duties under 38 C.F.R. § 3.103(c)(2) (2014). The Court cited Bryant v. Shinseki, 23 Vet. App. 488 (2010), issued three years after the hearing held in October 2007, making application of this decision at the time of the 2007 hearing problematical. The Veterans Law Judge who held that hearing has subsequently retired from the Board. In December 2014, the Board sent a letter to the Veteran informing him of his right to another hearing before a different Veterans Law Judge who would participate in the adjudication of is claims. The letter informed the Veteran that if he did not respond within 30 days of the date of the letter, it would assume that he did not want another hearing and proceed accordingly. The Veteran has not responded. Therefore, the Board will adjudicate the appeal based on the record. The Board previously remanded these issues to the RO (via the Appeals Management Center or AMC) in October 2011, December 2012, and May 2014. There has been substantial compliance with all Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board apologies for the delays in the full adjudication of this case. Although the RO denied service connection for a pituitary tumor in a December 2010 rating decision and the Veteran did not timely appeal the decision to the Board, the Board, in its May 2014 Remand directed that an opinion be provided as to a nexus between the Veteran's sleep apnea and his service via the pituitary tumor. Nevertheless, in the instant decision, the Board addresses the pituitary tumor consistent with the Remand directive. FINDINGS OF FACT 1. The Veteran's diagnosed sleep apnea is not an undiagnosed illness or a chronic unexplained multisymptom illness. 2. The Veteran's sleep disturbance other than sleep apnea is due to his service-connected posttraumatic stress disorder (PTSD) with depression. 3. The Veteran has not had asthma or a chronic respiratory disorder at any time from contemporaneous to when he filed his claim of entitlement to VA benefits to the present. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disorder have not all been met. 38 U.S.C.A. §§ 1110, 1117, 1118, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2014). 2. The criteria for service connection for a respiratory disorder, to include asthma, have not all been met. 38 U.S.C.A. §§ 1110, 1117, 1118, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran contends that he suffers from a sleep disorder and from asthma due to his service in the Persian Gulf in 2003 and 2004. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §1110; 38 C.F.R. § 3.303(a). "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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Statute and regulation provide for a presumption of service connection for undiagnosed illnesses and medically unexplained chronic multisymptom illnesses for Persian Gulf veterans. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.17. The Veteran is a Persian Gulf Veteran. Except as provided in paragraph (a)(7) of 38 C.F.R. § 3.317, VA will pay disability compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and (ii) history, physical examination, and laboratory tests cannot be attributed to and known clinical diagnosis. 38 C.F.R. § 3.317(a). The exceptions at subsection (a)(7) are not implicated in the case before the Board. For purposes of section 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: chronic fatigue syndrome; fibromyalgia; and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). For purposes of § 3.317, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Id. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. For purposes of § 3.317, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. For purposes of § 3.317 (a)(1), signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: Fatigue; signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Presumptive service connection is available for Persian Gulf veterans for certain enumerated infectious diseases. 38 C.F.R. § 3.317(c). The Veteran has never alleged that he had any of the enumerated diseases. This regulation also includes other requirements that must be satisfied for presumptive service connection based on status as a Persian Gulf veteran, such as the degree of disability, when it manifested, and the definition of a "Persian Gulf veteran." Those provisions are not the bases for the Board's denial of his appeal. In his August 2005 disagreement with the December 2004 decision, the Veteran stated "my asthma I did not have it prior to military but prior to Iraq it was not bad now I have bad attacks" and "from what I saw in middle east and what I did has probably caused my sleeping problems." May 1991 service treatment records document that the Veteran had flu-like symptoms for three days, including runny nose, sore throat, dizziness, and nausea. He reported that "I feel weak and my chest hurts when I breath in." Assessment was viral syndrome. An August 1992 Lawrence and Memorial Hospital, medical record documents that the Veteran sought treatment complaining of chest pain on inspiration and coughing. He had previously been diagnosed with bronchitis and was told to continue his medication. December 1998 notes from that hospital document that he again reported a cough, headaches and congestion. Assessment was bronchitis and he was given an albuterol inhaler. Service treatment notes include a February 2001 report of medical history in which the Veteran reported that he did not have allergies or asthma and he had a contemporaneous normal clinical evaluation of his lungs and chest. He sought treatment in October 2003, while stationed in Kuwait, for numerous symptoms including chest discomfort and pain inhaling. In his February 2004 post deployment health assessment, the Veteran reported that he currently had chronic cough, runny nose, and headaches, and that during the deployment to Kuwait he had difficulty breathing. He reported that while deployed he was sometimes exposed to vehicle or truck exhaust fumes, solvents, paints, and JP8 or other fuels and that he was often exposed to industrial pollution and sand or dust. He indicated that his health concerns included concerns about his lungs. In a contemporaneous report of medical assessment, the Veteran indicated that he suffered from "Kuwait crud;" he indicated that he had concerns about his health because he coughed and his lungs felt congested. Service treatment records do not document a sleep disorder, asthma, or a chronic breathing disorder. This is evidence unfavorable to his claims. VA afforded the Veteran a general medical examination in response to his claims in November 2004. As to the asthma claim, the examiner stated as follows: The veteran is unclear if he was ever officially diagnosed with asthma. The asthmatic symptoms date back to the early 1990s. The Iraq Kuwait polluted ambient air environment with sand blowing constantly worsened his symptoms of localized right upper chest pain during respiratory effort worst during end inspiratory and worse during end expiratory phases. He never saw a medic. He never used inhalers. . . . In Kuwait-Iraq, he experienced one 2-day upper respiratory infection. He rested and took aspirin and drank water. He did not see a medic. He did not take a sick day. As to sleeping problems, the examiner recommended a mental health examination to rule out PTSD. The examiner noted the Veteran's report that at least once every six weeks he is disturbed during his night sleep and wakes following an intrusive nightmare but otherwise experiences normal sleep and no intrusive events. Examination of his lungs, nose, and throat was normal and x-rays showed that his lungs were clear with no active infiltrates, pleural effusions, or pulmonary vascular congestion identified. The examiner indicated that there was no signs or symptoms of asthma and that more likely than not, polluted environmental ambient air conditions of Kuwait/Iraq provoked respiratory symptoms. As to sleeping problems, the diagnosis was that since inactivated from duty in March 2004, in context of reported chronic condition cited as asthma and a respiratory condition, he had no signs or symptoms of asthma and that more likely than not, polluted environmental ambient air conditions, Kuwait-Iraq deployment, provoked respirator symptoms. Although the Veteran reports that he has asthma, associated with records related to his disability claim with the Social Security Administration (SSA) is a report by "R.J.," D.O. from October 2005 that tends to show that the Veteran has subjective symptoms only. Dr. R.S. stated that the Veteran thinks that has asthma, but is not sure. Dr. R.S. stated that the Veteran gets congested with allergies, smoke and dust, does not have any inhalers, and uses no medication for his lungs. A constitutional review of systems states that the Veteran had the flu and had some lung congestion. As to how the Veteran was on the day of the examination, Dr. R.S. stated that he felt ok, that he has the flu and was down yesterday and today, and has some lung congestion. Respiratory examination was normal with no signs of respiratory difficulty. Dr. R.S. provided an assessment that include that the Veteran does not have a diagnosis of asthma but does have allergies and may have hyper-reactive airways. Comments from a different physician, "M.L.," M.D, include that there were allegations of asthma, but the Veteran had no treatment for asthma, reported that it did not bother him much, and reported that he had respiratory problems while in Desert Storm military duty. He had clear lungs and no wheezing. The SSA determined that his diagnoses included arthritis and allied disorder, major depression, and anxiety related disorders. The just described SSA records tend to show that the Veteran did not have a respiratory condition other than, perhaps, allergies. The notation that he had respiratory problems while on military duty is consistent with the Veteran's reports of problems with "Kuwait crud," as he described it, during his deployment but not afterwards. The 2004 VA examination is evidence against both claims. Given that service connection has been established for PTSD with depression, and his sleep problems including nightmares have been attributed to that diagnosis, the reports of sleep disturbances tend to show that he is already being compensated for the sleep disorder that he sought benefits for in his 2004 claim. The report addressing his respiratory problems is consistent with problems during service while in Kuwait, but not since (other than non-chronic conditions such as the flu). This is evidence unfavorable to both of his claims before the Board. November 2005 VA psychiatric consult notes document that the Veteran reported anxiety and depression and that he had symptoms including anergia with hypersomnolence (currently sleeping 12-16 hours per day) and occasional nightmares of military stressors. April 2006 notes document an update of his medical problems that includes his report of wheezing and pain in bronchiole tubes, only when around smoke or dust, started in Kuwait and a past medical history listing asthma - only in Kuwait. Again, this is consistent with the previously described evidence and is unfavorable to both of his claims. VA treatment notes document that the Veteran underwent a pituitary tumor resection in December 2006. This followed his presentation at the VA Neurosurgery Clinic with a 15-20 year history of gradual grown of head, hands, and feet, with a shoe size increase from 8 to 12. He had acromegalic features with large hands and feet. An MRI showed a pituitary mass. The Board mentions this at this point because as the claim and appeal developed the evidence showed that the Veteran developed sleep apnea and the pituitary tumor may have caused the sleep apnea via enlargement of his tongue because of excess growth hormone. This theory of entitlement is discussed in more detail later in this decision after relevant medical opinion evidence is listed. During the October 2007 Board hearing more than seven years ago, the Veteran's representative stated that the Veteran's spouse would speak for the Veteran and the Veteran would answer questions that his spouse was unable to. This was apparently due to the Veteran's health. With regard to the sleep issue his spouse testified that the Veteran mumbles and argues in his sleep and she had bruises, apparently from his sleep disturbance. When asked if the Veteran was being treated for the sleeping problem, his spouse stated that form what she gathered, he takes medications for all of the different issues and that he talks to a person at the Vet Center about reoccurring problems. When asked if she thought it as secondary to PTSD, she said yes. It is evident from this lay testimony that what she was describing was not a sleep apnea problem but rather disturbed sleep from dreams. Turning to the asthma, in response to the representative's question as to whether he had breathing or asthmatic problems prior to his service. His spouse testified that he did not and then added that the Veteran had written to her during service reporting that he was having chest pains and similar symptoms and that the Veteran referred to the breathing problem as Kuwait Crud and stated that all of his fellow service personnel had it. When asked what medicine the Veteran was currently taking and who was treating him for his breathing problems, his spouse testified that he had spoken to a doctor at VA about it and they kind of pushed him aside. When asked if he was receiving medication for an asthmatic/breathing problem, she replied "[h]e hasn't been. He just deals with it." She also testified that when the" humidity gets heavy, or something like that, he will have his breathing problems and he gets a sore throat real easy from it." Later in the hearing, the Veterans Law Judge who was the hearing officer asked if a doctor ever told him that he has asthma, the Veteran's spouse replied "[y]es." She also stated that she thought VA was testing him. The Veteran's Law Judge also asked whether the Veteran had ever said that he had sleep apnea. The Veteran's spouse stated that one doctor had mentioned it, she also reported that she was not sure, the Veteran had not had any testing, and that since his brain surgery (pituitary resection) "he can sleep two days at this point when he gets into these modes where he can't - - he just doesn't function. The only way he can do it is to go to bed." When asked if the Veteran was seeing anyone to address the sleeping problem, his spouse stated that the Veteran saw a therapist and she thought the Veteran had seen someone else who was a psychiatrist. This testimony is best understood as speculation on the Veteran's spouse's part that since these medical professionals talk to the Veteran he may have talked to them about sleep problems. She also stated that "it's so confusing - - I'm not exactly sure where at this point the VA is going with this." It was the testimony just described about both disabilities that led the Court, in its September 2010 decision, to vacate the December 2007 Board decision as to those issues. The Court determined that because the Veteran's spouse indicated that a diagnosis of asthma could be reduced to writing but was not of record, the Veterans Law Judge failed to fulfill his duty to suggest the submission of overlooked evidence. The Court also determined that because the Veterans' spouse indicated confusion about the sleep disorder issued, the Veteran needed clarification of the sleep disorder issue and the Veterans Law Judge's failure to provide the clarification was a failure to comply with 38 C.F.R. § 3.103(c)(2). That regulation provides, in pertinent part, that it is the responsibility of the employee or employees conducting hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. 38 C.F.R. § 3.103(c)(2). In the October 2011 Remand, the Board directed that VA send the Veteran a notice letter that explained the issues still outstanding that are relevant and material to substantiating the claims and suggest the submission of evidence that may have been overlooked and the Veteran should be notified that evidence of a diagnosis of asthma and sleep disorder could be reduced to writing and submitted in support of the claim. VA did so in a letter sent to the Veteran in December 2011. Just as significantly, and as mentioned in the Introduction of the instant document, the Board offered the Veteran an opportunity for another hearing in its December 2014 letter, to which he did not respond. These actions sufficiently addressed the Court's determinations with regard to the 38 C.F.R. § 3.103(c)(2) deficiencies of the hearing. Vet Center therapy records document that the Veteran reported sleep problems consisting of nightmares, knee and hip problems, the pituitary surgery. In September 2005 he reported sleeping 14 hours per day, which the examiner termed hyposomnia. He reported sleep disturbance and nightmares in May 2006 and in June 2006 he reported depression, anxiety, fatigue, hopelessness and helplessness, and hyposomnia. In January 2009 he reported hyposomnia, migraine headaches, fatigue, decreased motivation, and decreased appetite. In July 2009, he complained of headaches and memory problems. In August 2009 he reported that he had several symptoms, including depression, loss of interest, spending time at home in bed, fatigue, social withdrawal, and irritability. There is no mention of sleeping difficulties. These records tend to show that the Veteran did not report sleep apnea or breathing problems to his Vet Center therapist. This is significant because if he was having breathing symptoms, including sleep apnea, he likely would have reported it given that he reported other physical symptoms and problems. His reports of sleep problems are more in the nature of sleep problems related to his service connected psychiatric condition. VA mental health notes from October 2010 document the Veteran's report that he had increased sleep while May 2010 notes document the Veteran's acknowledgment that he was having trouble falling asleep and staying asleep. These reports are not probative of a nexus between any sleep problems and his active service. VA provided relevant examinations in January 2012. As to the asthma issue, the examiner stated that the Veteran had never been diagnosed with a respiratory condition. The examiner provided a detailed review of the claims file. The examiner specifically answered "[n]o" to questions of if the Veteran had a history of asthmatic attacks or any asthmatic attacks in the past 12 months and if he had any episodes of respiratory failure. The examiner also specifically answered "[n]o" to a question of whether the Veteran had any other pertinent findings, complications, conditions, signs and/or symptoms related to any conditions listed in the Diagnosis section of the examination report. It is noted that the Diagnosis section of the examination report is extensive as to options for different respiratory conditions, none of which were indicated as suffered by the Veteran. Documented is that the Veteran had diagnostic testing of a chest x-ray and pulmonary function testing (although the pulmonary function tests were not conducted contemporaneous to the examination as there is a notation that he failed to report for testing). There were no significant test findings or results. In a "Remarks" section, the examiner stated that there was no evidence that the Veteran has any chronic disability manifested by asthma that is due to any event or incident during service. The examiner also opined that it is as likely as not that the Veteran developed a temporary irritation due to environmental irritants while in Kuwait. The same examiner conducted the sleep apnea examination. The examiner stated that the Veteran had been diagnosed with sleep apnea in 2010. She noted that the Veteran had undergone a pituitary adenoma resection in December 2006 and that the adenoma had resulted in excess production of growth hormone. She explained that the excess growth hormone results in overgrowth of may tissues and that the tongue is often affected which may result in obstruction of the airway during sleep. As to the diagnosis of sleep apnea, the examiner stated that a VA sleep study was performed in September 2010 following a consult to evaluate load snoring as reported by the Veteran's spouse. Findings from the study yielded the diagnosis of sleep apnea. This is consistent with the report of a September 2010 VA sleep study. The Examiner also stated that there was no notation of sleep apnea during service. In a Remarks section, the examiner stated that that there is no evidence that the Veteran has any chronic disability manifested by sleep apnea that is due to any event or incident of his period of active service and that is sleep apnea is as likely as not the result of macroglossia which is likely due to his acromegaly / pituitary tumor. These reports are evidence unfavorable to the Veteran's claims. Although the examiner's opinion was that there was no evidence of a chronic disability manifested by asthma during or due to service, her opinion read as a whole and consistent with the reported findings, is that he had no chronic respiratory disability post-service but only temporary respiratory irritations while in Kuwait. The Board finds this consistent with the bulk of the other evidence of record and finds the report highly probative. It is also clear that the examiner's opinion was that although the Veteran was diagnosed with sleep apnea in 2010, this sleep apnea was not related to service. To that extent, the Board finds the report to be evidence against the sleep disorders claim. In May 2014, the Board remanded this case to the AOJ to request information from the Veteran and to provide a medical examination, with the following requirements: After examining the Veteran and reviewing the entire record, the examiner should opine as to whether it is at least as likely as not that the Veteran suffers from a current disability manifested by a sleeping disorder and asthma that due to an undiagnosed illness or medically unexplained chronic multisystem illness or a known diagnosable disease entity. In this vein, the examiner should opine as to whether the Veteran's pituitary tumor is at least likely as not related to Gulf War exposures, including an undiagnosed illness or medically unexplained chronic multisystem illness. The Board is aware that the Remand directive used the word "multisystem" while the correct word, as from the statute and regulation, is "multisymptom" (this is the first time this case has been before the undersigned). These two words obviously have different meanings. VA provided the examination in July 2014. Review of the examination reports shows that the examiner's opinions and findings, although stated in terms of "multisymptom," are adequate and probative. The report of the examination documents the Veteran's report that he had breathing issues that started in Kuwait between March 2003 and March 2004 and that since then his lungs hurt if he is exposed to smoke, dust, or new carpets. Noted by the examiner was that his lungs had always been found to be normal and that current examination and pulmonary function tests do not show asthma. The examination yielded no pertinent physical findings, complications, conditions, signs and/or symptoms related to a respiratory condition. There were no significant diagnostic test functions or results. This report is evidence that the Veteran does not have objective signs or symptoms of a respiratory disorder, such as asthma. There is no evidence of record of objective symptoms of a chronic respiratory disorder. This statement the Board makes fully cognizant of the Veteran's spouse's statement regarding the ease of which he contracts a sore throat and the effect of humid conditions. This is not evidence of objective signs and symptoms of a chronic respiratory condition. As he does not have the claimed disability, the examination is adequate despite the directions in the Board's Remand that used the word "multisystem." The examiner indicated that the Veteran has been diagnosed with obstructive sleep apnea. The examiner stated that sleep apnea is not an undiagnosed illness or a medically unexplained chronic multisystem illness. The examiner stated that sleep apnea is a known diagnosable disease entity. Again, the examiner's explanation that sleep apnea is a known diagnosable disease entity renders the Remand directive's use of "multisystem" harmless. A "known" diagnosable disease entity is not unexplained and is not undiagnosed. The examiner also stated that the medical literature does not document an established cause for development of pituitary tumors and a Medline review reported that the causes of pituitary tumors are unknown. The examiner noted that the American Cancer Society has reported that there are no known lifestyle-related or environmental causes of pituitary tumors so there is nothing that a person can do to prevent them. It was based on these facts that the examiner determined that the Veteran's pituitary tumor is less likely than not related to his Gulf War exposures and not related to an undiagnosed illness or medically unexplained chronic multisystem illness. This is probative evidence against a finding of a relationship between his pituitary tumor and service and therefore against a nexus between his sleep apnea and service via the pituitary tumor. The pituitary tumor was a diagnosed condition and is therefore not an undiagnosed illness. The examiner's statement that the cause of such tumors is unknown and her reference to medical literature tends to show that although the cause of the tumors is unknown it cannot be said that the illness is unexplained - the illness suffered by the Veteran is, from the medical evidence in this case, due to the tumor. To find that a known disease such as a pituitary tumor is a medically unexplained chronic multisymptom illness within the meaning of pertinent statute and regulation is inconsistent with the regulatory language. Rather, the Veteran's pituitary tumor is more in line with the conditions of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, excluded by regulation from the definition of medically unexplained. Also provided by VA in July 2014 was a mental disorders examination. The examiner indicates that the Veteran has been diagnosed with PTSD with depressed mood. She also indicated that that chronic sleep impairment applied to his diagnosis. The July 2014 examination reports the Board finds to be highly probative evidence against granting service connection for a respiratory condition. The examiner confirmed what other evidence has shown - the Veteran does not have a respiratory disorder, including asthma. He does not have objective signs and symptoms of a respiratory disorder, including asthma. This is in agreement with past examination results and is in agreement with treatment records. In this regard, the Veteran seeks treatment for a variety of conditions through VA but does not seek treatment for respiratory symptoms. His reports of such disorder are more in the way of experiencing symptoms during his deployment to Kuwait. Although he asserts that he has symptoms since his separation from service, his reports are not compelling in the sense of his having a chronic respiratory condition. His reports of having symptoms when the humidity changes, when exposed to smoke or dust, and when exposed to new carpet is not characterizations of a chronic illness. The examination reports and the post service treatment records, with reports of other symptoms but not of respiratory symptoms, are more probative than the Veteran's reports of his symptoms as to whether the Veteran has a respiratory disability, including asthma. The Board therefore concludes that he has not had such disability at any time from contemporaneous to when he filed his claim, to the present. Hence, the appeal as to this issue must be denied. There is no reasonable doubt to be resolved as to this claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's claim for a sleep disorder began with identification of symptoms as nightmares and resulting difficulty going to sleep and staying asleep. That symptom is part of his service connected psychiatric disability and he is compensated for disability due to that symptom by the 70 percent rating for PTSD. His only other sleep disorder is sleep apnea. The evidence shows that he did not have that condition during service and did not develop it until sometime in 2006. The evidence is against a finding that it was caused by his active service and it is not an undiagnosed illness or a chronic medically unexplained multisymptom illness. His sleep apnea has been attributed to his pituitary adenoma. The evidence tends to show that the tumor did not have onset during his active service and was not caused or aggravated by his active service. To the extent that he had the tumor for many years prior to its diagnosis in 2006 (given his report of gradual shoe size change) there is no evidence of the existence of any symptom during service and no evidence of a worsening during service. The July 2014 examiner's opinion is the most probative evidence as to whether it is related to his active service. There is no competent evidence to link the tumor to his active service. This is significant in that even if his tumor did cause his sleep apnea, such a cause does not provide a nexus between his active service and his sleep apnea. The preponderance of evidence is against a finding that the Veteran has, during the entire course of his claim and appeal, had a sleep disorder for which VA is not compensating him that is related to his active service or subject to presumptive service connection. Hence, the appeal as to this issue must be denied. 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. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2014). In the instant case, VA provided adequate notice in a letter sent to the Veteran in May 2004, December 2011, and October 2012. To the extent that notice was not provided prior to the 2004 rating decision, as to assignment of disability ratings and effective dates, such defect in the notice is harmless error because, as the appeal is denied, these downstream issues will not be reached. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records are associated with the claims file as are records associated with his claim for disability benefits from the Social Security Administration (SSA) and private treatment records. The Board provided adequate examinations as to both issues on appeal, as detailed in the Service Connection section of the instant decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. ORDER Service connection for a sleeping disorder is denied. Service connection for a respiratory disorder, to include asthma, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs