Citation Nr: 1805837 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-17 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a sleep apnea disability. 2. Entitlement to service connection for restless leg syndrome. 3. Entitlement to an initial compensable evaluation for elevated liver enzymes. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Air Force, with active duty service from April 1989 through August 2009. This appeal comes to the Board of Veterans' Appeals ("Board") from an August 2013 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Buffalo, New York (hereinafter Agency of Original Jurisdiction ("AOJ")). In June 2017, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge via videoconference hearing. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In reviewing the electronic record, the Board observes that additional medical evidence has been obtained and associated with the Veteran's file subsequent to the date of the AOJ's last Supplemental Statement of the Case. However, as will be discussed in greater detail below, the Board decision with respect to the claims for entitlement to service connection is fully favorable to the Veteran, and thus no prejudice results in deciding these claims. The issue of entitlement to an initial compensable evaluation for elevated liver enzymes is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's current sleep apnea disability began during, or was otherwise caused by, his active duty service. 2. The Veteran's current restless leg syndrome began during, or was otherwise caused by, his active duty service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a sleep apnea disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1132, 5103, 5103(a), 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for restless leg syndrome have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1132, 5103, 5103(a), 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In regards to the Veteran's claim for entitlement to service connection, the Board notes that the VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain on his behalf, in correspondence dated January 2013 and June 2013. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disability to active service and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in the January 2013 VCAA notice, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The record indicates that the Veteran has applied for and/or is in receipt of disability benefits from the Social Security Administration ("SSA"). While VA's duty to assist generally requires that such records be obtained, VA is only required to obtain Social Security Records when those records are potentially relevant to the claim on appeal. See Golz v. Shinseki, 590 F. 3d 1317 (Fed. Cir. 2010). As to the claims for service connection decides herein, the Board finds that no prejudice will result to the Veteran because the decision is fully favorable. As such, the Veteran's SSA records are not relevant to the claims for entitlement to service connection for a sleep apnea disability and restless leg syndrome. The Veteran has been provided with multiple VA examinations and medical opinion, which addressed the Veteran's reported symptoms, frequency, and severity and the interference these symptoms cause in his ability to complete basic daily tasks. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds these VA examinations are adequate for rating purposes and an additional examination is not necessary regarding the claims adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") at videoconference hearing in June 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claims that was lacking to substantiate the claims for benefits. The VLJ specifically noted the issues as including the issues listed on the title page of this decision. The Veteran was assisted at the hearing by an accredited representative from The American Legion. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist since the date of the Board's August 2016 remand. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). General Laws and Regulations Governing Entitlement to Service Connection: In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease 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). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That being the relevant, generalized, law applicable to the Veteran's claim, the Board finds that the evidence of record warrants a finding of entitlement to service connection for an obstructive sleep apnea disability and restless leg syndrome. Following a review of the competent and credible evidence of record, which includes both medical and lay evidence, the Board finds the Veteran experienced an onset of symptoms, of both his restless leg syndrome and his obstructive sleep apnea disability, during his active duty service, and that these symptoms remained chronic and continuous until he was formally diagnosed in March 2010 and July 2012, respectively. See Savage, 10 Vet. App. at 494-97. A review of his current medical treatment records indicates that the Veteran has a current diagnoses for an obstructive sleep apnea disability and restless leg syndrome. See e.g. July 2012 Overnight Polysomnography. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. 38 U.S.C. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As to the second element, the existence of an in-service disease, the Board finds that the service medical records do not contain any reports or diagnoses for either an obstructive sleep apnea disability or restless leg syndrome. However, the Board observes that the Veteran has credibly reported an onset of symptoms during a period of active duty service. For example, during a November 1998 occupational health examination, the Veteran reported excessive fatigue. Similar reports were made during subsequent occupational health examinations in June 1999 and June 2000. Additionally, during a January 2008 physical examination, the Veteran reported that during the prior 30 days, he experienced inadequate sleep each of the 30 days. During this examination, the Veteran endorsed symptoms of difficulty falling asleep, difficulty stating asleep, and waking up too early. In addition to the Veteran's lay reports, the record contain a lay descriptions of the Veteran's symptoms from his wife. In a June 2012 letter, the Veteran's wife reports that she noticed a change in the Veteran's sleeping beginning in the late 1990s and early 2000s. She described during this period, the Veteran began to snore loudly during his sleep and experience rapid movement of his limbs throughout the night. See also June 2017 Hearing Testimony, describing the onset of symptoms in the late 1990s. Additionally, the Veteran's wife reported that these symptoms were initially treated as symptoms related to his mental health disabilities; however, after continuous symptoms, the Veteran's physicians recommended he undergo a sleep study. Based upon this lay evidence, the Board finds there is sufficient evidence to establish an onset of sleep apnea symptoms and symptoms of restless leg syndrome during the Veteran's active duty service. The Board finds that these lay reports of record are credible and establish an onset of symptoms beginning in the late 1990s. Thus, the primary question before the Board is whether a nexus exists between these in-service reports of symptoms of obstructive sleep apnea and restless leg syndrome, and the Veteran's subsequent diagnoses. As noted briefly above, service connection may be established for certain chronic diseases. 38 U.S.C. §§ 1101, 1112, 1133, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Additionally, diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a), may still qualify for service connection under the three-element test for disability compensation listed in § 3.303(a). In this regard, a chronic disease is defined as a disease "persisting over a long period of time." See Dorland's Illustrated Med. Dictionary 359 (32d ed. 2012). In terms of the Veteran's claim, the Board acknowledges that neither obstructive sleep apnea nor restless leg syndrome are disabilities listed as "chronic" by 38 C.F.R. § 3.309. However, the board finds that the Veteran's symptoms of obstructive sleep apnea and restless leg syndrome have been chronic and continuous since their initial onset during a period of active duty service. Specifically, the Veteran has testified that the onset of his symptoms began in the late 1990s, during a period of active duty service. The Veteran has similarly made statements to his treating physicians that he experienced an onset of symptoms beginning in the late 1990s, as evidenced by his November 1998 occupational health examination. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition). Moreover, the Board finds that the date of the Veteran's diagnosis indicates that his symptoms were chronic and continuous following his separation from active duty service. Specifically, the Veteran was diagnosed with restless leg syndrome during a March 2010 sleep study, less than a year following his separation from active duty service. Thereafter, following a July 2012 overnight polysomnography, the Veteran was diagnosed with obstructive sleep apnea. Although the diagnosis for obstructive sleep apnea did not occur within a year of the Veteran's separation from active duty service, the Board notes the medical records document his continuous symptoms during this period. For example, during a December 2009 physical examination, the examining clinician observed the Veteran had a history of trouble sleeping, and that he was known to be a heavy snorer who wakes up multiple times throughout the night. See Erie VAMC Records. The examining clinician further observed that the Veteran had some indications of hypersomnolesnces and that he is a candidate for sleep study in the future. Given the proximity of this diagnosis to the Veteran's separation from active duty, and the medical evidence documenting a history of symptoms, the Board finds it reasonable to conclude that the Veteran's sleep apnea symptoms were both chronic and continuous until the time of his diagnosis. In making this determination, the Board is aware that the evidentiary record contains two unfavorable VA medical opinions. However, the Board finds these medical opinions fail to consider the Veteran's lay reports of continuous symptoms and are therefore entitled to less probative weight. For example, the April 2016 medical opinion concludes that the Veteran's sleep apnea disability is less likely than not related to his active duty service because the symptoms reported during service were too vague to be attributed to obstructive sleep apnea. The Board finds this explanation to be factually inaccurate as it fails to consider the totality of the symptoms reported and experienced by the Veteran. The April 2016 examiner additionally explains that there are several possible etiologies of the Veteran's reported symptoms of fatigue. For example, the examiner cites to anxiety, low testosterone, Epstein Barr virus, and liver disease as potential disabilities which caused the Veteran's fatigue. While the Board has considered this rationale, the Board finds that the examiner has overlooked the chronicity of the Veteran's symptoms. Notably, the Veteran was treated for the above conditions, both during service and in the subsequent years. Despite these treatments, including medication and lifestyle changes, the Veteran's symptoms of fatigue, poor sleep, and snoring persisted. Only after being treated for these disabilities was the Veteran referred for a sleep study. As such, the longitudinal medical records document that the Veteran was treated for many possible causes for his fatigue, and only after these disabilities had been ruled out as contributing to his symptoms, was the Veteran diagnosed with an obstructive sleep apnea disability. Overall, the Board finds that the Veteran's statements regarding an onset of symptoms during a period of active duty service and continuous symptoms thereafter to be credible. Following his separation, the Veteran experienced continuous symptoms, and was subsequently diagnosed with obstructive sleep apnea and restless leg syndrome. In conclusion, and after consideration of the above evidence, the Board finds that the criteria for service connection for an obstructive sleep apnea disability and restless leg syndrome have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an obstructive sleep apnea disability is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to service connection for restless leg syndrome is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND While the Board regrets the delay, a remand is required before the Board may make a determination on the merits of the instant appeal. Specifically, in November 2016, the AOJ issued a deferred rating form which noted that the evidence suggested the Veteran was in receipt of disability benefits from SSA. Unfortunately, the records from the Veteran's SSA benefits, including his application, determination, and any records upon which the determination was made, are not yet of record. These SSA records may be relevant to the Veteran's claim for an initial compensable evaluation for his liver disability. As such, remand is required to obtain these records and associate them with the claims file. See 38 U.S.C. § 5103A(c)(3); 38 C.F.R. § 3.159(c); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board greatly regrets the additional delay in resolving this claim, which has already been pending for over seven years. Unfortunately, as discussed above an additional remand is required. Accordingly, the case is REMANDED for the following action: 1. First, the AOJ should obtain any records from the Social Security Administration, to include any award of disability benefits and any underlying records used in reaching the determination. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 38 C.F.R. § 3.159(c)(2). 2. The AOJ should also obtain any outstanding medical records from VA treatment facilities identified by the veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). 3. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and her representative an opportunity to respond. 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). 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 (West 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs