Citation Nr: 1805830 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-12 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea (OSA). 2. Entitlement to service connection for chronic heartburn. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran had active service from October 2008 to October 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Regarding the issue of service connection for a sleep disorder, to include OSA, the Veteran originally claimed service connection for sleep disturbances. See March 2013 VA Form 21-526EZ and associated correspondence. After the July 2013 rating decision denied service connection for that condition and he filed a July 2013 notice of disagreement (NOD) with that decision, the Veteran requested service connection for OSA. See November 2013 Report of General Information. Although service connection for OSA was separately adjudicated in a September 2014 rating decision, and the Veteran did not file a NOD with that decision, the record reflects that it is his contention that sleep apnea is part and parcel of his original claim for service connection for a sleep disorder. See April 2014 VA Form 9, substantive appeal; see also December 2016 supplemental statement of the case (SSOC). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In light of the decision in Clemons, the Veteran's claim for service connection for sleep disturbances has been expanded and recharacterized as a claim for service connection for a sleep disorder, to include OSA, as reflected on the cover page. The issue of entitlement to service connection for chronic heartburn is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has been diagnosed with or suffers from a sleep disorder other than OSA during or proximate to the appeal period. 2. The evidence of record does not demonstrate a connection between the Veteran's OSA and his service. CONCLUSION OF LAW The criteria for service connection for a sleep disorder, to include OSA, have not been met. 38 U.S.C. §§ 1110, 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. Here, the Veteran received required notice along with his fully developed claim form which was submitted in March 2013. As to VA's duty to assist, the Board finds that all necessary development has been accomplished with respect to the Veteran's claim, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and post-service VA treatment records have been associated with the claims file. Where the Veteran has identified and authorized VA to obtain private treatment records, VA has either obtained those records and associated them with the claims file or made the appropriate attempts to obtain those records. The Veteran has been provided with VA examinations in June 2013 and September 2014 in order to assess his claims for a sleep disorder and OSA. Neither the Veteran nor his representative has raised any issues with the adequacy of the examinations and opinions. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection Service connection may be established for a disease or injury incurred in or caused or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran originally claimed service connection for a sleep disorder and subsequently advised VA that he had been diagnosed with obstructive sleep apnea in November 2013. A subsequent VA examination in September 2014 documented that the Veteran had undergone a sleep study pursuant to his employer's requirements and been prescribed a CPAP machine as treatment. However, the examiner also stated that the Veteran did not have any current findings, signs or symptoms attributable to sleep apnea or demonstrate the medical findings necessary to require a CPAP device. The Veteran's service treatment records do not record any diagnosis or treatment for OSA during his time in service. His service treatment records do record several weeks of difficulty sleeping for which he sought treatment during the autumn of 2010. In response, he was provided with suggestions regarding sleep hygiene to aid in relaxation and decrease stimulation and eventually given a 2 week trial of a sleep aid medication. There is no record of a follow-up visit from the Veteran or of a recurrence of this condition or treatment since that time. The September 2014 VA examiner considered whether this treatment for a sleep disorder was connected to his subsequent, post-service diagnosis of OSA. The examiner opined that the Veteran's OSA was less likely than not (less than a 50 percent probability) related to his sleep disturbances in 2010. The examiner noted that the Veteran had gained a significant amount of weight since leaving service and was obese. The examiner explained that obesity was the primary cause of sleep apnea, and stated that it was more likely that the Veteran's sleep apnea was caused by his significant weight gain since leaving service. With the exception of a diagnosis of obstructive sleep apnea, the record does not reflect that the Veteran has been given a diagnosis or complained of sleep disorder symptoms during or proximate to the appeal period. Neither the Veteran's lay statements nor post-service treatment records document a sleep disorder other than OSA during or proximate to the appeal period. At a June 2013 VA examination for mental health disorders conducted as an evaluation concerning a possible sleep disorder, the Veteran reported that he would go to sleep each night between 11 p.m. and 1 a.m. and awaken between 6 a.m. and 7 a.m. He reported that he did not awaken during the night unless awakened by some noise in his environment and was able to return to sleep after being awakened. He did not report symptoms of sleep apnea at the time of this examination, and he reported that his wife had not noticed breathing problems while he is sleeping. He reported drinking a non-prescription tea advertised to aid sleep before going to bed. No diagnosis of a sleep disorder or any mental health disorder was made as a result of this examination. Based on this evidence, the Board finds that entitlement to service connection for a sleep disorder (other than OSA) cannot be granted in this matter. The most probative evidence of record indicates that the Veteran has not, at any time during the relevant appeal period, manifested a sleep disorder other than OSA. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (noting that the Board must consider evidence of a "recent" diagnosis made prior to the filing of a claim). While the record reflects that the Veteran had several weeks of poor sleep and a short term prescription to a sleep aid medication in service, the record does not show that the Veteran's in-service sleeping difficulties have resulted in any disability during the time period relevant to this appeal. Accordingly, the Board finds that there is no valid claim of service connection for such disability and service connection for a sleep disorder other than OSA is denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). With regard to the Veteran's OSA, the Board finds that the evidence of record weighs against a finding of a nexus between that condition and the Veteran's service. Service connection is available where a disability was caused by, incurred in, or aggravated by some event, injury, or disease that a veteran is exposed to in service. Hickson, 12 Vet. App. 247; 38 C.F.R. § 3.303. Here, the competent evidence of record is that the Veteran's OSA had its onset after the Veteran's service had ended and was related to the Veteran's substantial weight-gain after service. The Veteran has provided no medical opinion contrary to the September 2014 VA examiner's opinion and, as a layperson, he is not competent to opine as to the etiology of that disability. For the reasons stated above, the Board finds that service connection for a sleep disorder, to include OSA, is not warranted. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, the benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for a sleep disorder, to include OSA, is denied. REMAND With respect to the Veteran's claim for chronic heartburn, the Board finds that this matter must be remanded for an examination prior to a final adjudication in this matter. The Veteran's service treatment records seem to document complaints of heartburn, and sometimes daily heartburn. And while it does not appear that this resulted in a diagnosis or regular treatment during service, the Board finds that this evidence meets the necessary threshold to trigger VA's duty to obtain an examination to determine if the Veteran is suffering from a current disability that is related to the reported heartburn symptoms from his service treatment records. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding/updated VA treatment records that are not already associated with the claims file that are relevant to the claims on appeal. 2. After the above records development is completed, schedule the Veteran for an appropriate examination to assess the nature, severity, and etiology of the Veteran's claimed chronic heartburn condition. The examiner should opine as to whether the Veteran has, or has had during or proximate to this appeal, a diagnosable chronic heartburn disability. If so, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that this condition was incurred in or caused or aggravated by the Veteran's service, to include his reports of heartburn in his service treatment records. The examiner should provide a complete rationale for each opinion given, and cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider(s) must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. Once the development described above has been completed, undertake any further development that may be indicated. Then, readjudicate the claims on appeal. If any claim remains denied, or less than the full benefit sought is granted, provide the Veteran and his representative with an appropriate SSOC and the requisite time to respond. Then, if the claims file is otherwise in order, return the claims to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs