Citation Nr: 1552547	
Decision Date: 12/16/15    Archive Date: 12/23/15

DOCKET NO.  12-00 747	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
 San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a left foot fracture.

3.  Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected residuals of a left foot fracture.

4.  Entitlement to a rating in excess of 10 percent for residuals of a left foot fracture.  


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs



ATTORNEY FOR THE BOARD

K. Hughes, Counsel


INTRODUCTION

The Veteran had active military service from April 1969 to November 1970. 

These matters come before the Board of Veterans' Appeals (Board) from June 2010 and October 2010 rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in San Juan, Puerto Rico.  

Additional treatment records and examination reports were associated with the claims file since the December 2011 statement of the case (SOC).  However, as the additional evidence is not pertinent to the sleep apnea claim adjudicated on the merits in this decision (any relevant findings are cumulative), there is no need to remand to the RO for consideration of the additional evidence.  38 C.F.R. § 20.1304 (2015).

The issues of service connection for an acquired psychiatric disorder and low back disorder and increased rating for residuals of a left foot fracture are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

Sleep apnea was not manifested during the Veteran's active duty service, and is not shown to be related to his service.



CONCLUSION OF LAW

Service connection for sleep apnea is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  The duty to notify was satisfied by a May 2010 letter, prior to the initial adjudication of the Veteran's claim.

The Veteran's pertinent treatment records have been secured.  The RO did not arrange for a VA examination/opinion as to the claim of service connection for sleep apnea.  There is nothing in the record that suggests that sleep apnea may be related to the Veteran's service and he has not advanced any specific theory of entitlement.  Absent an indication that the disability may be associated with the Veteran's service an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 79 (2006), is not met.  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.

Legal Criteria, Factual Background, and Analysis

Initially, it is noted that the Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record.  Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Service connection may be granted for disability due to disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection also may be granted for any disease initially 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 substantiate a claim of service connection, there must be evidence of: the claimed disability; incurrence or aggravation of a disease or injury in service, and; and a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran's service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnosis related to impaired sleep, including sleep apnea. 

On his July 2010 VA Form 21-4138, Statement in Support of Claim, the Veteran reported that he developed sleep apnea because he was unable to sleep properly during his service in Thailand due to the kind of work he performed and he awoke early in the morning due to noise.  Private treatment records show that the Veteran was diagnosed with obstructive sleep apnea in August 2009, after undergoing a sleep study. 

It is not in dispute that the Veteran has sleep apnea.  However, his STRs are silent for any complaint, finding, treatment, or diagnosis relating to sleep apnea.  The earliest post service notation of sleep apnea does not suggest that it was manifested prior to August 2009 (nearly 39 years after service separation).  Accordingly, service connection for sleep apnea on the basis that such became manifest in service and persisted is not warranted.

Furthermore, post service evaluation/treatment records provide no indication or suggestion that the Veteran's sleep apnea may somehow otherwise be related to his service.  The only evidence in the record that relates his sleep apnea to his service consists of the Veteran's own statements.  He is a "layperson" and does not claim to have any medical expertise.  While a layperson may be competent to observe symptoms of impaired sleep, the diagnosis and etiology of an insidious process such as sleep apnea are complex medical questions that require medical expertise.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).  The Veteran has not submitted any medical opinions or medical literature in support of his allegations.  In the absence of evidence of onset of related symptoms in service and continuity of such symptoms thereafter, the unexplained and unsupported (by medical evidence) statements of the Veteran alleging a nexus between his service and sleep apnea manifested at least 39 years later does not merit any probative value.  The Board finds that the lengthy interval between service and the initial diagnosis of sleep apnea weighs against a finding of service connection. 

In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for sleep apnea and the appeal must be denied.

ORDER

Service connection for sleep apnea is denied.


REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the appellant in the development of facts pertinent to his claims of service connection for an acquired psychiatric disorder and low back disorder and increased rating for residuals of a left foot fracture.  See 38 C.F.R. § 3.159. 

Review of the record shows that the Veteran is in receipt of ongoing treatment for his claimed mental health and back disorders.  Specifically, records from the Social Security Administration (SSA) include an August 2010 Neurological Medical Report which notes that the Veteran received orthopedic, neurologic and psychiatric treatment for his back and psychiatric symptoms.  Updated treatment records should be obtained and associated with the claims file (and VA records are constructively of record).

Regarding the increased rating claim, the most recent VA examination for residuals of left foot fracture was conducted in May 2010, over 5 1/2 years ago.  The prolonged intervening period since he was last examined require the Board to remand the Veteran's claim for increase for a contemporaneous examination to assess the current severity of his left foot disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

The Veteran also claims that he has a psychiatric disorder secondary to his service-connected residuals of left foot fracture.  On August 2010 VA mental disorders examination, the examiner opined that, as there was no diagnosis of a psychiatric disorder, an opinion as to whether such disorder is secondary to his service connected residuals of left foot fracture could not be provided.  However, review of SSA records shows that the Veteran's mental health symptoms were diagnosed as major depression, severe, in September 2010.  Since the August 2010 VA examination did not address the relationship between the Veteran's depression and his service-connected left foot condition, the Board finds that a new opinion is necessary to address this matter.

Finally, a July 2015 report of VA back examination includes findings and opinion pertinent to the claim of service connection for a back disability.  As the Veteran has not waived his right to have this evidence considered in the first instance by the originating agency, remand is necessary so that the originating agency can consider the evidence and prepare a supplemental statement of the case, if warranted.  See 38 C.F.R. §§ 19.31(b), 19.37(a), 20.1304(c).

Accordingly, the case is REMANDED for the following action:

1.  Identify and obtain any outstanding VA and private treatment records not already associated with the record, to specifically include records of private treatment to which the Veteran referred in connection with his claim for SSA benefits.

2.  Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected residuals of a left foot fracture.  The examiner must review the Veteran's claims file in conjunction with the examination.  The examiner should comment on the nature and extent of any impairment of social and/or occupational functioning due to the foot condition that would be expected given the degree of severity of the disability found.  

A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

3.  After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any diagnosed psychiatric disorder, to include depression.  The entire claims file should be made available to the examiner for review.  Based on the examination and review of the record, the examiner should address the following: 

(a)  Is it at least as likely as not (50 percent or higher degree of probability) that any current depression was caused by his service-connected left foot condition?

(b)  Is it at least as likely as not that the Veteran's service-connected left foot condition aggravated any current depression?

The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of depression (i.e., a baseline) before the onset of the aggravation. 

A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

4.  After completion of the above, readjudicate the issues on appeal, with consideration of all evidence associated with the record subsequent to the December 2011 SOC.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action.

The appellant has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs