Citation Nr: 1822358 Decision Date: 04/13/18 Archive Date: 04/25/18 DOCKET NO. 14-26 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a respiratory disability to include due to asbestos exposure. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for somnambulism. REPRESENTATION Appellant represented by: James M. McElfresh II Agent WITNESS AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. During the appeal, jurisdiction transferred to the RO in Salt Lake City, Utah. The Veteran testified at a May 2015 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board previously remanded this case in June 2016 and it is now properly before the Board. The issues of entitlement to service connection for respiratory disability and acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have somnambulism. CONCLUSION OF LAW Disability due to somnambulism was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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 i. Laws and Regulations Service connection will be granted if the evidence demonstrates that a disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. To deny a claim on its merits, the evidence must preponderate against the claim. ii. Service Connection - Somnambulism (sleep walking) Upon review of the evidence of record, the Board finds service connection for somnambulism is not warranted, as there is no evidence this is a current disability. A review of the record reveals the Veteran had episodes of sleep walking before and during service. However, the Veteran does not contend and the evidence does not show somnambulism during the pendency of this claim. Service treatment records (STR) note a history of somnambulism, including episodes while in service, which ultimately lead to his separation from service. See October 6, 1970 STR. Medical and lay evidence since this time do not reveal somnambulism post-service. The Veteran initially filed the claim that lead to the issues on appeal in a May 2012 letter through his representative. The letter did not mention somnambulism or sleep walking, including in the section that included "The current symptoms that the veteran is aware of". Somnambulism was only added to the claim later when the Veteran's representative sent a letter noting that the Veteran's file had been reviewed and the representative observed that sleep walking was noted on the Veteran's October 1970 separation examination. See September 28, 2012 letter, received October 1, 2012. The representative did not state the Veteran currently experiences somnambulism. During the Veteran's hearing, the Veteran's representative noted generally that sleep walking may be associated with posttraumatic stress disorder, but did not state the Veteran has experienced somnambulism during the pendency of the claim. Neither the Veteran nor his spouse testified the Veteran currently experiences sleep walking. Instead the Veteran's spouse discussed how the Veteran would wake her up because he would talk and move in his sleep. Similarly, in a June 2017 letter, the Veteran's spouse reported the Veteran has had trouble falling asleep for 25 years. She further stated that due to a psychiatric disorder the Veteran engages in sleep talking and physical movements while sleeping, but she did not mention sleep walking. This lay opinion is consistent with the July 2013 VA examiner's finding that chronic sleep impairment was a symptom of the Veteran's psychiatric disorders. The Veteran's own report to a VA examiner supports the Board's conclusion. During the Veteran's December 2016 VA mental disorders examination, the examiner asked the Veteran about his sleep walking history. The examiner noted that since the Veteran's discharge, nobody has told him that they have seen him sleep walking. In any claim for compensation, there must be evidence of disability. He apparently is of the belief that he is entitled to some sort of benefit simply because he had a disease or injury while on active service. That, of course, is mistaken. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In light of the evidence above, the Board finds somnambulism is not a current disability, and therefore service connection is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. ORDER Entitlement to service connection for somnambulism is denied. REMAND Respiratory Disability Testing and Examination In the body of the June 2016 remand, the Board discussed evidence of a respiratory disability and found "that a new examination is needed which includes getting a CT scan, to properly determine if the Veteran has a current respiratory disability associated with asbestos exposure." The Board did not include a corresponding remand directive and the requested testing and examination was not performed. Acquired Psychiatric Disorder Upon review of the evidence of record, the Board finds remand is required to ensure compliance with its prior directives and the duty to assist. The Veteran underwent a VA mental disorders examination in December 2016. The examiner found the Veteran has one mental disorder that conforms to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria, Other Specified Trauma- and Stressor-Related Disorder. However, the examiner didn't provide sufficient information, consistent with the DSM-5. According to the DSM-5: "The other specified trauma- and stressor-related disorder category is used in situations in which the clinician chooses to communicate the specific reason that the presentation does not meet the criteria for any specific trauma- and stressor-related disorder. This is done by recording 'other specified trauma- and stressor-related disorder' followed by the specific reason (e.g., 'persistent complex bereavement disorder')." However, the examiner did not communicate the specific reason. Additionally, the June 2016 remand directed the examiner to provide an opinion on whether any identified acquired psychiatric disorder was caused or aggravated by his service-connected hearing loss and tinnitus. As part of the examiner's report, the examiner was to consider and discuss articles the Veteran provided in support of his claim. In the examination report, the examiner said he discussed the articles with the Veteran, but did not provide an analysis or otherwise discuss the articles in his report as required by the Board's remand. The examiner similarly did not address the Veteran's lay statements in support of his claim as required by the Board's remand. A remand by the Board confers on an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that a September 2016 memorandum contains a formal finding on a lack of information required to corroborate the claimed stressor associated with a claim for a psychiatric disorder. The memorandum states "Evidence of written and telephonic efforts to obtain this information is in the file. All efforts to obtain the needed information have been exhausted" (emphasis added). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA records of evaluation and/or treatment since July 2014. 2. Schedule the Veteran for a CT scan and VA respiratory examination. The VA examiner should comment on the following inquiries: a) The examiner should identify any respiratory disease or injury that exists, or that has existed at any time during the pendency of the claim. If the examiner finds asbestosis was not a disability during the appeal period, the examiner should state so and provide rationale. b) For each respiratory disease or injury identified, the examiner should opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that such disability was either incurred in, or is otherwise caused by or aggravated by the Veteran's active service. A complete rationale for each opinion expressed must be provided. 3. Obtain an addendum opinion from the December 2016 mental disorder examiner. The VA examiner should comment on the following inquiries: a) Specify the specific reason for the other specified trauma and stressor related disorder. (In the body of the report, the examiner noted two specific complaints by the Veteran but did not establish the reason for the diagnosis.) b) Opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any identified psychological disability has been aggravated by a service-connected disease or injury. In providing this opinion, the examiner should note that the articles and lay statements provided by the Veteran in support of his claim were considered. 4. Contact the Veteran to obtain necessary information to verify his reported stressor (e.g. name of sailor that died, approximate date of death and name of ship Veteran was on at the time). The Veteran is reminded that it is his responsibility to provide the required information. 5. After undertaking any additional development deemed appropriate, adjudicate the claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran should be furnished with a Supplemental Statement of the Case. 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 (2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs