Citation Nr: 1318889 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-17 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a sleep disorder. 2. Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from November 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for a skin disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Sleep impairment is a symptom of the Veteran's service connected post traumatic stress disorder (PTSD). 2. The Veteran has not been diagnosed with a separate and distinct sleep disorder that manifested during, or as a result of, active military service, or, that was caused by or permanently aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for establishing service connection for a sleep disorder have not been met. 38 U.S.C.A. §§1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through a letter dated in June 2007, the VCAA notice requirements were satisfied. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, private treatment reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. Service Connection - Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts 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 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection - Sleep Disorder The Veteran contends that he is entitled to service connection for a sleep disorder. The Board finds however that the preponderance of the evidence of record demonstrates that the Veteran's impaired sleep is merely a symptom of his service-connected posttraumatic stress disorder (PTSD) and is not a separate and distinct disability. As such, service connection is not warranted. The Veteran receives VA mental health treatment for his PTSD. During treatment for his psychiatric disability, the Veteran has reported insomnia, nightmares, and difficulty falling or staying asleep. The examiners have noted these as persistent symptoms of increased arousal and related them to the Veteran's PTSD. In March 2010, the Veteran received a VA examination regarding his PTSD. The examiner noted that the Veteran has frequent awakening due to nightmares with night sweats. The Veteran's wife reported that he swings his arms and swears during his sleep three to four times monthly. When listing PTSD symptoms, the examiner noted persistent symptoms of increased arousal, to include difficulty falling or staying asleep. There is no medical record reflecting the Veteran has a diagnosed sleep disorder. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a sleep disorder. The Veteran's impaired sleep, including his nightmares and his difficulty falling and staying asleep, are symptoms of his PTSD and already considered as part of his disability rating for PTSD. To assign a separate rating based on this symptomatology would amount to nothing more than pyramiding. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2012). Although it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Here, the Veteran's sleep difficulties are already considered as a symptom of his PTSD in his psychiatric evaluations and in the considerations of the assigned disability rating. As such, to rate a sleep disorder separately would be duplicative and overlapping with the symptomatology of the PTSD. As the preponderance of the evidence is against the claim for service connection for a sleep disorder, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a sleep disorder is denied. REMAND During service, the Veteran was seen in January 1967 with macular, pigmented lesions on the back and arm, that were very pruritic. Post-service, the Veteran's skin disabilities have been diagnosed as dermatitis, lichen planus, lichen simplex chronicus, a fungal rash, and an inflamed face after shaving. The Veteran should be examined and an opinion obtained as to whether any current skin disability is related to the in-service findings. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service skin symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After associating all pertinent outstanding records with the claims file, schedule the Veteran for a VA examination regarding his skin disability. All indicated testing should be accomplished. The examiner should review the claims file, note all current or chronic skin diagnoses, and address the following question: Is it at least as likely as not that the Veteran's diagnosed skin disability had its onset during or was causally related to service? In this regard, the examiner should address the service treatment record showing complaints of macular pigmented lesions of the Veteran's back and arms, and whether this may represent an early manifestation of a current disability. A rationale should be provided for all opinions expressed. 3. Then, readjudicate the appeal. If the benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs