Citation Nr: 1600982	
Decision Date: 01/11/16    Archive Date: 01/21/16

DOCKET NO.  09-08 515	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected posttraumatic stress disorder (PTSD), shell fragment wounds (SFWs), or medication taken for service-connected disabilities.

2.  Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected PTSD, SFWs, or medication taken for service-connected disabilities.

3.  Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected PTSD, SFWs, or medication taken for service-connected disabilities.

4.  Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, SFWs, or medication taken for service-connected disabilities.

5.  Entitlement to service connection for a separately diagnosed sleep disability, to include as secondary to service-connected PTSD, SFWs, or medication taken for service-connected disabilities.

6.  Entitlement to an effective date prior to September 7, 2011, for the grant of a total disability rating based on individual unemployability (TDIU).

7.  Entitlement to an effective date prior to September 7, 2011, for the grant of Dependents' Education Assistance under 38 U.S.C.A. Chapter 35 (DEA).


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney-at-Law


ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from November 1965 to November 1967.  The service connection matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO).  The effective date matters are on appeal from an August 2012 rating decision.   

[April and May 2015 correspondence from the Board to the Veteran's attorney misstated the issues currently before the Board.  Claims for increased ratings for PTSD and a left shoulder muscle injury; service connection for a left leg disability, a right shoulder disability, a right eye disability, bilateral feet disabilities, a neck disability, a traumatic brain injury (TBI), a left wrist/elbow disability, and tinnitus; and whether new and material evidence had been received to reopen a claim of service connection for a bilateral hand disability were remanded to the AOJ by a Veterans Law Judge [other than the undersigned] in May 2013.  Although the May 2015 letter suggested that those matters had been readjudicated and returned to the Board, they remain pending AOJ action and are not before the Board at this time.  

In addition, the May 2015 correspondence erroneously listed as issues on appeal the matters of service connection for intervertebral disc syndrome and seeking reinstatement of service connection for sciatic nerve paralysis.  The Veteran does not have pending appeals (nor has he filed claims) on such issues, and they are not before the Board.]

The issue of service connection for migraines was raised by the record (in a September 2008 VCAA notice acknowledgement form), 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) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 CFR Parts 3, 19, and 20 (2015)).

The issues of service connection for GERD, IBS, ED, and hypertension and seeking earlier effective dates for grants of TDIU and DEA are being REMANDED to the AOJ.  VA will notify the appellant if action on his part is required.


FINDING OF FACT

The Veteran is not shown to have (or during the pendency of this claim to have had) a separately diagnosed sleep disorder (independent of sleep problems related to his service-connected PTSD).




CONCLUSION OF LAW

Service connection for a separately diagnosed sleep disorder is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met.  By correspondence dated in April 2010 and May 2012, VA notified the Veteran of the information needed to substantiate and complete his claim (on a direct basis and as secondary to service-connected disabilities), to include notice of the information that he was responsible for providing and what evidence VA would attempt to obtain, as well as how VA assigns disability ratings and effective dates of awards.  He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate.

The Veteran's Social Security Administration (SSA) records and identified pertinent treatment records have been secured.  The AOJ arranged for VA examinations in May 2010 and June 2012.  The Board finds that the examination reports (cumulatively) contain sufficient clinical findings and information regarding the history and features of the disability to constitute probative medical evidence adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran has not identified any other potentially pertinent evidence that remains outstanding.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

Analysis

The Board notes that it 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.  The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus 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 established for disability due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  To establish service connection for a disability, there must be evidence of: A present disability; incurrence or aggravation of a disease or injury in service; and a causal relationship between the present disability and the disease or injury incurred or aggravated in service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  A disease diagnosed after discharge may still be service connected if the evidence, establishes that such disease was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 

Service connection is also warranted for any disability that is proximately due to or a result of a service connected disability.  38 C.F.R. §3.310.  Briefly, the elements of a successful secondary service connection claim are evidence of: a current disability (for which secondary service connection is sought); a disability already service connected; and that the service connected disability caused or aggravated the disability for which service connection is sought.

The determination as to whether the above 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 there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  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).

In his February 2010 claim, the Veteran asserted entitlement to service connection for a disability manifested by difficulty falling and staying asleep, to include the need to take medication (Prazosin) to mitigate the effects of the alleged sleep disability. 

While the Board acknowledges that medical records provided by SSA include a summary of a March 2003 treatment record noting possible sleep apnea, VA treatment records for the period on appeal are silent regarding a separately diagnosed sleep disability.  (See, e.g, July 2009 Vet Center letter (attributing sleep disturbances "directly" to PTSD); February 2010 preoperative screening (noting no sleep apnea); March 2010 medication list (noting that Prazosin is taken for nightmares and blood pressure control); January 2011 mental health note (indicating that Prazosin had been prescribed to treat nightmares associated with service-connected PTSD); May 2011 mental health note (suggesting that some sleep problems may be related to (non-service-connected) rheumatoid arthritis pain); January 2012 preoperative screening (noting no sleep apnea); April 2012 primary care note (noting sleep disruption due to chronic pain); June 2014 nursing note (noting Veteran is at risk for developing obstructive sleep apnea, but has not received such diagnosis and does not report any apnea events.) 

On May 2010 VA examination, the Veteran reported getting 3-4 hours of sleep per night and that medication was no longer controlling his nightmares.  He also reported that pain in his feet, left ankle, fingers, shoulder, neck, knee, and back may be interfering with his sleep.  He also reported that he was occasionally snoring and jerking in his sleep, which he attributed to reduced exercise as a result of his chronic pain.  He reported nightly nightmares, from which he wakes up sweating and hyperaroused.  His wife reported twitching that appeared to be associated with nightmares.  The examiner noted potential risk factors for sleep apnea (neck size and weight gain), but did not diagnose that disability.  The examiner opined that the Veteran's disordered sleep was the result of PTSD and pain.

On June 2012 VA examination, the examiner noted that the Veteran denied that he had sleep apnea or any symptoms of sleep apnea.  The examiner noted the Veteran's report that he gets 4-5 hours of sleep per night (but needs 5-6 to feel rested), that he naps daily, that he wakes 2-3 times per night to use the bathroom, and that 2-3 nights per week he has difficulty getting back to sleep.  The examiner found no medical evidence in the record to support a diagnosis of a sleep disorder independent of sleep problems related to PTSD.  

The medical evidence of record, to include treatment records and VA examinations, does not show a diagnosis of a sleep disability separate and distinct from sleep disturbance manifestations of  PTSD or other service-connected disability.  To the extent that some records suggested the possibility of a sleep apnea diagnosis, the Board notes that sleep apnea has not been diagnosed, nor does the Veteran assert that he has received such diagnosis (or any diagnosis of any separate sleep disorder).  In the absence of proof of a separate and distinct sleep disability entity, or any other competent evidence that the Veteran actually has (or during the pendency of the claim has had) such disability, there is no valid claim for service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999).

To the extent that the Veteran has submitted treatise evidence in support of a link between PTSD and sleep apnea, the Board notes that sleep apnea has not been diagnosed and, in fact, was denied by the Veteran on June 2012 VA examination.

To the extent that the Veteran's disordered sleep has been attributed to pain (and might, therefore, be construed, under Clemons v. Shinseki, 23 Vet. App. 1 (2009), as a request for increase in a service-connected disability manifested by pain), the Board notes that on May 2010 the Veteran specifically described pain in his feet, left ankle, fingers, shoulder, neck, knee, and back.  The Board notes that the matters of service connection for foot, left leg, right shoulder, and neck disabilities; increased rating for left shoulder disability; and whether new and material evidence has been received to reopen a right shoulder disability claim have been previously remanded to the AOJ for additional development (and the matters of the ratings for such disabilities, if applicable, are not before the Board at this time).  The Board notes that the rating for PTSD (to which the sleep disability has also been attributed) was also previously remanded to the AOJ for further development and is not now before the Board.  Service connection for a back disability was the subject of a final July 2002 rating decision and was not included on the Veteran's September 2002 notice of disagreement with that rating decision; it is not before the Board at this time.  Consequently, to the extent that the Veteran's complaints of disturbed sleep might be construed as a request for increase in another service-connected disability, the Board finds that the ratings assigned for those service-connected disabilities alleged to be causing sleep-disruptive pain are already on remand to the AOJ (and thus outside the Board's jurisdiction at this time). 

In summary, the competent (medical) evidence of record indicates that the Veteran does not have a separately-diagnosed sleep disability.  Reported symptoms are associated with other service-connected disabilities (the ratings for which are currently under development at the AOJ and not within the Board's jurisdiction) or disabilities for which service connection has not been granted (several of which are also currently under development at the AOJ).  Consequently, the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply. The appeal in this matter must be denied.


ORDER

Service connection for a separately-diagnosed sleep disability is denied.


REMAND

In correspondence received in September 2010, the Veteran's attorney provided citations for medical literature purporting to relate the claimed GERD, IBS, ED, and hypertension disabilities to service-connected PTSD on a secondary basis.  The Veteran was provided VA examinations for these disabilities in May 2010 and June 2012.  However, the examiners did not specifically address the cited literature.  As the Veteran has, through his attorney, asserted that the VA examinations were inadequate in that they concluded that medical literature does not support the Veteran's theory of entitlement to service connection on a secondary basis, and as specific citations to literature asserted to support that theory have been provided, the Board finds that remand is required for supplemental VA opinions that address the literature in question.

In addition, the record reflects that the Veteran receives on-going treatment for the claimed disabilities.  However, the most recent treatment records in the file are from August 2014.  Given that records of treatment since may contain information pertinent to the claims, and because VA treatment records are constructively of record, updated treatment records must be sought.

Regarding the matters of the effective dates for TDIU and DEA, such matters are inextricably intertwined with claims remanded by the Board in May 2013 (specifically, the rating assigned to PTSD, the disability that was the basis for the grant of TDIU and DEA) and pending further development by the AOJ; consideration of these claims must be deferred at this time.

Accordingly, the case is REMANDED for the following:

1.  The AOJ should ask the Veteran to identify the provider(s) of any and all evaluations and/or treatment he has received for GERD, IBS, ED and hypertension, and to provide authorizations for VA to secure records of any such private treatment.  The AOJ should secure for the record complete clinical records of all relevant evaluations or treatment (records of which are not already associated with the record) from the providers identified.  If any records sought are unavailable, the reason for their unavailability must be noted in the record.  If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received.

2.  The AOJ should then return the Veteran's record to the June 2012 VA examiner for further review and medical opinions regarding the etiology of the Veteran's GERD, IBS, ED, and hypertension disabilities.  [If further examination is deemed necessary to respond to the questions posed, such should be arranged.  If the June 2012 examiner is unavailable, the AOJ should arrange for another appropriate physician to review the record (and conduct an examination, if needed) and respond to the questions posed.] 

The examiner should respond to the Veteran's assertion (in September 2010 correspondence) that medical literature supports his theory of service connection on a secondary basis.  The examiner must address the following cited literature:

(a)  Testimony on Post-Traumatic Stress Disorder Research at the National Institute of Mental Health before the U.S. House of Representatives Committee on Oversight and Government Reform;

(b)  National Center for PTSD Fact Sheet on PTSD and Mental Health;

(c)  About.com: Mental Health: Reliving Trauma - Post-Traumatic Stress Disorder;

(d)  Sexual Dysfunction in Combat Veterans w/Posttraumatic Stress Disorder, UROLOGY, Nov 2002, 60(5), 881-84;

(e)  Sexual Dysfunction in Male Posttraumatic Stress Disorder Patients, PSYCHOTHERAPY AND PSYCHOSOMATICS, Nov-Dec 2000, 69(6), 309-15;

(f)  Preliminary Evaluation of Sexual Problems in Combat Veterans w/PTSD, JOURNAL OF TRAUMATIC STRESS, Jan 1997, 10(1), 125-32; 

(g)  Relationship of Cynical Hostility and PTSD among Vietnam Veterans, JOURNAL OF TRAUMATIC STRESS, March 1994, 7(1), 21-31;

(h)  Hypertension in Relation to Posttraumatic Stress Disorder and Depression in the US National Comorbidity Survey, BEHAVIORAL MEDICINE, Winter 2009, 34(4), 125-31.

(i)  The Association of Posttraumatic Stress Disorder and Metabolic Syndrome: A Study of Increased Health Risk in Veterans, BMC MEDICINE, Jan 2009, 7(1); and

(j)  National Center for PTSD Fact Sheet on PTSD and Physical Health. 
 
The examiner(s) must include rationale for all opinions, citing to supporting clinical data as indicated.

3.  The AOJ should then review the record and readjudicate the claims (the Board notes that the TDIU and DEA claims will not be ready for readjudication until the matters remanded in May 2013 are readjudicated).  If any remain denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney opportunity to respond.  The case should then be returned to the Board 

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).  These claims 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).


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs