Citation Nr: 0003056 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 95-28 836 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Crawford, Counsel INTRODUCTION The veteran had active service from February 1944 to May 1946, August 1947 to June 1950, and from August 1950 to October 1951. In a September 1998 rating action, the RO denied entitlement to service connection for sleep apnea. Notice of that determination was mailed to the veteran on November 3, 1998. That same month the veteran filed notice of disagreement. Thereafter, however, the veteran was not issued a statement of the case (SOC). As a result of the foregoing, in June 1999 the Board of Veterans' Appeals (Board) remanded the matter to the RO and asked them to issue to the veteran a pertinent SOC. A SOC, which contains pertinent law and regulations associated with the denial of service connection for sleep apnea, was mailed to the veteran on June 30, 1999. Even though the veteran did not respond and on the October 1999 VA Form 646, the veteran's representative did not directly disagree with the SOC, the Board finds that the issue of entitlement to service connection for sleep apnea has been properly developed for appellate review. On that document the representative referred the matter for Board consideration. Thus, when construing the representative's latter statement in the light most favorable to the veteran, the Board finds that the issue has been developed for appellate review. In December 1999, the veteran's representative submitted an informal hearing presentation, arguing that a SOC had not been issued to the veteran and a remand was warranted. As subsequently shown by the record, the RO did mail a SOC to the veteran on June 30, 1999. Accordingly, as indicated by the veteran's representative, the case is ready for appellate consideration. FINDING OF FACT The medical evidence does not indicate that the veteran's sleep apnea is related to service. CONCLUSION OF LAW The claim of entitlement to service connection for sleep apnea is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks service connection for sleep apnea. He asserts that his disorder is related to pneumonia contracted while in service. In a December 1997 statement, the veteran states that while in service he walked three miles through snow and temperature climates of 20 degrees below zero. As a result of this exposure, he was diagnosed with "double pneumonia," which is related to his currently diagnosed sleep apnea. In this case, while the veteran's arguments are recognized, review of the medical evidence shows that his claim is not well grounded. VA law and regulations provide that service connection may be granted for a disability resulting from personal injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). 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 (1999). As in this claim, the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is plausible. See 38 U.S.C. § 5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997). "Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well- grounded claim generally requires: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of occurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Brown, 9 Vet. App. 341 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). Where the determinative issue involves either medical etiology or medical diagnosis, competent medical evidence is required to well ground the claim. See Caluza, 7 Vet. App. at 506. In determining whether a claim is well grounded, the evidence in support of the claim is presumed truthful. See Robinette v. Brown, 8 Vet. App. 69, 74-75 (1995). As previously noted, the medical evidence in this case fails to show that the veteran has submitted a well-grounded claim. The record does not contain medical evidence establishing a nexus between the veteran's sleep apnea and his active military service. In fact, the veteran's statement is the only evidence of record suggesting a medical nexus between his current disorder and service. That is not enough to well ground his claim. Except for a diagnosis of pharyngitis in 1946, the service medical records are silent with respect to any respiratory complaints or findings such as pneumonia and any complaints or findings associated with sleep apnea. Further, the post-service medical reports, including VA and non-VA outpatient treatment, examination, and hospital reports dated from January 1952 to April 1991, are negative for any references to sleep apnea. An April 1991 Medical Equipment Prescription Form, documented approximately 50 years after service, initially shows a diagnosis of obstructive sleep apnea. But, even on that report, no reference to service or any events from service was made. Thereafter, although VA treatment reports dated from September 1989 to May 1998 generally record a history of sleep apnea and show that the veteran received treatment, not one of those reports indicates that the veteran's disorder had its onset in service or relates the disorder to any events of service. As such, the medical evidence shows that the claim is not well grounded. Given the aforementioned findings, the veteran's statements alone, without competent supporting medical evidence, are insufficient to well ground his claim. See Caluza, 7 Vet. App. at 506; Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board also acknowledges that in a December 1996 statement, while requesting entitlement to an increased percentage and referencing sleep apnea, the veteran alluded to having a hearing on the matter. Although a hearing was not subsequently accomplished, the Board finds that additional development in this regard is not warranted. In this case, the Board notes that subsequent to 1996 and up to the day of the promulgation of this decision, the veteran has not specifically requested a hearing associated with the issue on appeal. Further, the veteran did not request a hearing subsequent to the November 1998 notification of certification of the appeal to the Board. As such, the Board finds that additional development in this regard is not warranted. The Board also notes that a December 1997 VA treatment reports shows that the veteran underwent a sleep study in October 1997 and, if accomplished, this report is not of record. Nevertheless, no additional action in this respect is warranted. As previously discussed, the veteran's claim is not well grounded. If the veteran fails to submit a well- grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Morton v. West, 12 Vet. App. 477 (1999); Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997); Grottveit, supra; 38 C.F.R. § 3.159(a). In the June 1997 SOC, the veteran was informed of what evidence is required to establish a well-grounded claim and during the pendency of the appeal, he was informed of the evidence necessary to complete his case. Robinette v. Brown, 8 Vet. App. 69 (1995). In addition, there does not appear to be any outstanding evidence of which VA is on notice; thus, there is no duty to assist. See Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997). The appeal is denied. ORDER Entitlement to service connection for sleep apnea is denied. V. L. Jordan Member, Board of Veterans' Appeals