Citation Nr: 1706188 Decision Date: 03/01/17 Archive Date: 03/16/17 DOCKET NO. 10-02 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a sleep disturbance, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a cervical spine (neck) disability, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1986 to July 1993, to include service in the Southwest Asia Theater. These matters are on appeal before the Board of Veterans' Appeals (Board) and arise from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia and a November 2015 rating decision from the Appeals Management Center (AMC). In November 2015, the claims for entitlement to service connection for a sleep disturbance and neck disability were remanded by the Board for further development. In May 2016, the Veteran changed his representation from the Georgia Department of Veterans Services to attorney Ralph J. Bratch and executed a valid VA Form 21-22a. In August 2016, the Veteran's attorney requested an extension of time until October 31, 2016, for the submission of argument and evidence. The undersigned Veterans Law Judge granted the attorney's request. However, to date no additional material has been submitted to the record, and no additional requests for extension of time have been received. The Board further notes that, in an October 2016 notice of disagreement, the Veteran indicated his disagreement with the November 2015 grant of service connection for headaches, which assigned an initial noncompensable (zero percent) disability rating. A Statement of the Case (SOC) should be issued. FINDING OF FACT The preponderance of the evidence does not establish that any sleep related disability or neck disability are directly-related to the Veteran's period of active military service, and no arthritis of the cervical spine was diagnosed within one year following separation from active service. CONCLUSIONS OF LAW 1. A neck disability was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein, to include as due to an undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2016). 2. A sleep related disability was not incurred in or aggravated by service, to include as due to an undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.317 (2016). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duty to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. The Veteran received an examination addressing his claimed neck disability and sleep disturbance in July 2014. In November 2015, the Board finding that the July 2014 VA examiner's opinion that the Veteran's neck disability was not related to his service, based in part on an inaccurate finding that he did not experience a neck disability during service, was inadequate. The Board also found that the July 2014 VA examiner's opinion that his sleep disturbance was not related his service was based on a conclusory rationale as to why his in-service reports of sleeping difficulty were not symptoms of sleep apnea, was also inadequate. On these bases, in November 2015 the Board remanded these claims to provide the Veteran with new examinations and to obtain adequate medical opinions. Pursuant to the Board's November 2015 remand, in December 2015 relevant VA examinations were scheduled to take place in January 2016. A note in the electronic claims folder indicates that the examinations were later cancelled due to the Veteran's failure to RSVP for the examinations. A February 2016 report of general information indicates that the Veteran stated that he was never notified of the examinations. The VA examinations were rescheduled for March 2016. However, according to a March 2016 note from the VA examiner, the Veteran failed to cooperate and refused to participate in the examinations. When the VA examiner took him to the examination room he wanted to talk about his neck and back in addition to unrelated issues. When she explained that she had to do a history to clarify details prior to writing a medical opinion, he called the VA examiner an expletive, comparing her to the previous examiner. He told her that there were X-rays which showed back problems in 1990. However, the VA examiner was not unable to find any imaging of the neck in the record prior to 2013. She stated that he became increasingly stubborn and after showing him the evidence of record and suggesting a time out, the Veteran expressed his intention to leave. She offered for him to speak to the nurse manager and he refused. The examiner escorted him to the waiting room and he departed. The Veteran has an obligation to cooperate in the adjudication of his claim. See Olson v. Principi, 3 Vet. App. 480, 483 (1992) (claimant must cooperate with the Secretary's efforts to provide a medical examination); see also Dusek v. Derwinski, 2 Vet. App. 519, 521-22 (1992) (affirming the denial of a claim for an increased disability rating based upon the claimant's refusal to cooperate with a VA medical examination). Here, despite VA's efforts to assist the Veteran in substantiating his claims, the Veteran's failure to participate in the examinations thwarted VA's efforts. Without additional assistance from the Veteran, VA is unable to provide any additional assistance. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Service Connection In this case, the Veteran has claimed service connection for a sleep disturbance and cervical spine disability. As previously addressed, in a November 2015 remand, the Board found prior examinations inadequate for adjudication. With regard to the Veteran's claimed neck disability, on July 2014 VA examination, the examiner concluded that the Veteran did not experience a neck or cervical spine injury in service and only suffered a lumbar spine injury. However, the Board notes that the record clearly shows that the Veteran experienced neck injuries/cervical injuries during service. The first incident was due to a motor vehicle accident in 1989, with numerous other treatments for cervical spine pain. Thus, the examination resulted in an inadequate medical opinion. Therefore, the Board remanded the claim so as to obtain a VA opinion to determine the etiology of his cervical spine disability. With regard to the claimed sleep disturbance, on July 2014 VA examination the examiner noted the Veteran's reports of trouble sleep during service and opined that it was less likely than not that the Veteran's sleep apnea was incurred in service. The rationale, in part, was that if the Veteran had sleep apnea during service then frequent trouble sleeping would not be an indication of sleep apnea. However, the Board found the July 2014 VA examiner's opinion was inadequate as it provided a conclusory rationale as to why the Veteran's in-service reports of sleeping difficulty were not symptoms of sleep apnea. Additionally, the examiner did not report on the etiology of the Veteran's diagnosed insomnia and whether that condition was incurred in or due to active service. Therefore, the Board remanded the claim so as to obtain a VA opinion to determine the etiology of his diagnosed sleep disturbance to include sleep apnea and insomnia. In this regard, while the Board acknowledges that its November 2015 remand noted deficiencies in the July 2014 examination report, as noted above, the Board must decide the Veteran's claims based on the evidence of record, given the Veteran's failure to cooperate during the examination. 38 C.F.R. § 3.655. To that end, the United States Court of Appeals for Veterans Claims (Court) has held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent laws and regulations make special provisions for a Persian Gulf Veteran who exhibits objective indications of an undiagnosed illness or certain medically-unexplained chronic multi-symptom illnesses, including fibromyalgia and gastrointestinal signs or symptoms. See 38 U.S.C.A. §§ 1117, 1118 (West 2014); 38 C.F.R. § 3.317 (2016). A Persian Gulf veteran is a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, as this Veteran has demonstrated. 38 C.F.R. § 3.317(d), In cases in which a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is warranted. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). At the outset, the Board notes that the July 2014 VA examiner diagnosed Veteran with obstructive sleep apnea, degenerative arthritis of cervical spine and spinal stenosis. Moreover, the examiner opined that the Veteran did not meet the criteria for a chronic disability patterns associated with exposure to Southwest Asia environmental hazards. He did not have any chronic disability patterns of "undiagnosed illnesses" and did not have any diagnosed medically unexplained chronic multisymptom illnesses. She concluded that his claimed conditions are diagnosable conditions with an etiology. As such, the first element of Hickson, a current diagnosis, has been satisfied for these two issues. Therefore, these two issues are not presumptively-associated with Gulf War Syndrome and are not undiagnosed illnesses, as known clinical diagnoses for each have been established. Neck disability With regard to the Veteran's claimed neck disability, the Veteran's service treatment records (STRs) include an August 1989 report which indicates that the Veteran was in a motor vehicle accident, where he was stopped in a vehicle at a light and rear-ended. He reported a gradual development of neck pain. A November 1990 report shows that the Veteran reported upper back pain near his shoulder that occurred while he was lifting an object above his head. He was assessed with a trapezius strain. Reports dated in March 1992 report shows that the Veteran was assessed with a cervical muscle spasm. The Veteran was referred to physical therapy for treatment. He was unable to touch his chin to his chest or move his neck to the left side. A March 1992 radiology request shows that the Veteran complained of neck pains in connection with a motor vehicle accident 2 years ago. A July 1993 report of medical history indicates a complaint of frequent trouble sleeping. The July 1993 ETS examination report indicates a normal clinical evaluation of the spine. A January 2013 MRI of the cervical indicates an impression of degenerative changes severe at C5-C6 level with severe canal stenosis and cervical spinal cord edema secondary to a large dorsal disc osteophyte complex. A July 2014 VA examination report concerning the Veteran's cervical spine shows that he was diagnosed with degenerative arthritis of the spine and spinal stenosis. The Veteran reported that he first noticed issues with his cervical spine between 1987 to 1990 prior to the Gulf War. He reported that he was moving a truck trailer when he felt a twinge of his entire spine from the neck down. Moments later, he reported the he was rear ended while driving. He also reported that there were other times throughout his service where he was treated for neck issues. He denied re-injury of the neck after service, although he stated that he was in a wreck around October 2009. He stated that about five years earlier he received chiropractic care, but did not indicate whether it was relevant to his current neck disability. The examiner opined that it was less likely than not that the Veteran's cervical spine disability was incurred in service. The examiner noted that there were no reports of a neck injury in service, but there were reports of the Veteran injuring his lumbar spine which was already service connected. There was documentation of an ongoing back condition in private medical records, but no mention of neck in the 2006 time frame. The Veteran reported that there was another MVA after separation from service around 2010. The examiner stated that she would be resorting to mere speculation to state that the current neck condition was related to the neck condition treated in service without documentation of the ongoing chronic neck condition years following separation from service. In the November 2015 remand, the Board found that the July 2014 VA examination report was based on an inadequate factual premise. The examiner concluded that the Veteran did not experience a neck or cervical spine injury in service and only suffered a lumbar spine injury. However, the Board noted that the record clearly showed that the Veteran experienced neck injuries/cervical injuries during service. The Board noted that the first incident was due to a motor vehicle accident in 1989, with numerous other treatments for cervical spine pain. The Board determined that the examination resulted in an inadequate medical opinion and remanded the claim for a new VA examination to determine the etiology of his cervical spine disability. Of note, the Board remand concluded that there was insufficient evidence of record to support a grant of service connection. Essentially, the medical nexus element was missing from the Veteran's claims file. The Board remanded the claim to assist the Veteran in obtaining such a record. However, "[t]he duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran was asked to participate in a VA examination, he failed to comply with this and became hostile towards the VA examiner. This failure to cooperate with the examination meant that the opinion could not be obtained, solely due to the Veteran's own actions. As such, the evidentiary record remains the same as it did at the time of the Board remand. That is, there is insufficient evidence of record to support a grant of service connection. Accordingly, the Veteran's claim is denied. Sleep disturbance With regard to the claimed sleep disturbance, the Board notes that the Veteran self-reported on his July 1993 report of medical history that he experienced sleeping difficulty. An August 2007 treatment report from the Veteran's private physician, Dr. C.P., noted that he reported feeling tired and fatigued with poor sleep as he worked on the night shift. The Veteran was diagnosed with malaise. An August 2011 sleep study from the Savannah Sleep Disorder Center showed that the Veteran had mild sleep apnea. A September 2011 private treatment report shows that the Veteran was diagnosed with sleep apnea and insomnia. An April 2012 VA treatment record shows that the Veteran was diagnosed with insomnia and treated with medication. A July 2014 VA examination report concerning the Veteran's sleep disorder shows that he was diagnosed with sleep apnea in 2011. He reported that he first started having sleep issues in 1991 while stationed in Saudi Arabia and could not get enough sleep to go on guard duty and work environment. The Veteran reported that his wife told him that he would stop breathing in his sleep. The Veteran was noted to use a continuous positive airway pressure machine. The examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in service. In the rationale provided, the examiner noted that the Veteran did check off frequent trouble sleeping on his July 1993 separation examination. She indicated that this symptom would not give a diagnosis of sleep apnea. The Veteran was not diagnosed with sleep apnea until 2011. The examiner noted that if the Veteran had sleep apnea during service then frequent trouble sleeping would not be an indication of sleep apnea. In November 2015, the Board found that the July 2014 VA examiner's opinion was inadequate as it contained a conclusory rationale as to why the Veteran's in-service reports of sleeping difficulty did not constitute symptoms of sleep apnea. Additionally, the examiner did not report on the etiology of the Veteran's diagnosed insomnia and whether the condition was incurred in or due to active service. The Board remanded the claim for a new VA examination to determine the etiology of his diagnosed sleep disturbances, to include sleep apnea and insomnia. Essentially, the Board found that the evidence of record at the time of the remand was insufficient to satisfy the criteria for service connection for a sleep problem. Specifically, the nexus element of service connection was missing, and the Veteran, while competent to report certain symptomatology, is not considered competent (meaning medically qualified) to diagnose a sleep disorder. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board remanded the Veteran's claim to assist him in obtaining the evidence that was missing in his claim. Unfortunately, his failure to participate in his claim prevented the additional evidence which might have assisted him in his claim from being added to his claims file. As such, based on the evidence of record, the criteria for service connection for a sleep disability have not been established and the Veteran's claim is denied. ORDER Service connection for a sleep disturbance is denied. Service connection for a cervical spine (neck) disability, is denied. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs