Citation Nr: 1752831 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-33 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a sleep disorder, to include sleep apnea. REPRESENTATION Veteran represented by: Calvin Hansen ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from February 1970 to February 1972. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This matter was previously before the Board in February 2015 and June 2016 in which the Board remanded the matter for further development in both instances. All requested development has been substantially complied with and the case is presently before the Board for further appellate review. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's sleep apnea was not incurred in or caused by active service and was proximately due to or aggravated by the Veteran's service-connected PTSD, and other sleep symptoms are part of his PTSD and not a separate disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has complied with the duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (a) (2016). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present 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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, secondary service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Legal Analysis The Veteran seeks secondary service connection contending that his service-connected PTSD has caused or aggravated his sleep disorder. After a review of the Veteran's claim file, the Board finds that the evidence does not support the Veteran's contention and service connection is not warranted. The evidence shows that the Veteran's primary complaints regarding his sleep condition have included symptoms of difficulty falling asleep and/or staying asleep which have already been contemplated in his PTSD assessment. For example, in February 2009 in a Psychiatry Consult, the Veteran complained of not being able to sleep and difficulty getting to sleep. Subsequently, in May 2009 during the Veteran's initial VA examination for PTSD, the Veteran noted that over the years he has had problems with his sleep since "the bayonet incident." The Veteran explained that he was attacked by another Marine with a bayonet. In response to the Veteran's claim for a sleep disorder, the Veteran received a VA examination in July 2011 to determine the etiology of the Veteran's sleep condition. The Veteran reported a long pattern of difficulty with sleep since his time in service in which the examiner acknowledged and agreed; however, the examiner determined that although the Veteran does exhibit problems with his sleep, his sleep problems fall under the "D" criteria of PTSD for "difficulty falling or staying asleep." The examiner ultimately found that the Veteran does not warrant a separate DSM-IV Sleep Disorder due to military service or secondary to PTSD. In November 2012, an Anesthesiology Pre-Operative Note indicated that the Veteran could possibly have sleep apnea; however, subsequent evidence of record continued to show that the Veteran's primary complaint with sleep was a lack thereof. This notion is further supported by the Veteran's statements in January 2013, March 2015, and April 2015, respectively. In those medical visits, the Veteran reported that he has difficulty getting to sleep and staying asleep, that he continues to have trouble falling asleep at night, and that he feels anxious going to bed early. See January 2013 C&P PTSD Review, April 2015 and March 2015 PTSD Clinic Notes. Additionally, in a June 2015 C&P PTSD Review, the examiner found that the available medical evidence does not support a primary sleep disorder, but rather, the Veteran's sleep issue was consistent and repeatedly reported as part of his PTSD condition. Similarly, in a June 2015 Internal Medicine Consult Note, the examiner found that the Veteran's sleep disorder was related to his diagnosis of PTSD. The examiner explained that the Veteran's accounts of having difficulty with falling asleep, due to anxiety of being attacked and being woken up from nightmares on a nightly basis with difficulty falling asleep, are consistent with a sleep disorder due to PTSD. The examiner opined that it is at least as likely as not that the Veteran's current sleep disorder was caused by his service-connected PTSD. The Board recognizes that while the examiner in the June 2015 Internal Medicine Consult found that the Veteran had a sleep disorder and that there was a causal relationship between the Veteran's sleep disorder and his service-connected PTSD, the examiner did not diagnose the Veteran with a specific sleep disorder. The Board notes that the symptoms intimated by the Veteran during his internal medicine visit are the same as the sleep impairment symptoms that have been taken into account in determining the severity of the Veteran's PTSD condition, and that have been attributed to his already service-connected PTSD. Thus, to the extent that a sleep disorder was referenced, it appears to be as part of the PTSD. Further, even if a separate sleep disorder related to the PTSD were present, no compensation could be provided because the symptoms of this condition have been contemplated in the assigned rating for the Veteran's service-connected PTSD, and, the Board is prevented from "pyramiding" or evaluating the same disability/symptoms under several diagnostic codes. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14. Therefore, as the Veteran's sleep condition has already been considered in the assessment of his service-connected PTSD, the Veteran is not entitled to a separate rating for the same symptomatology. Moreover, the evidence shows that the Veteran received a diagnosis of sleep apnea in June 2016 during a VA Disability Benefits Questionnaire (DBQ). However, the Board finds that the Veteran's sleep apnea is also unrelated to his active duty service, nor is it related to the Veteran's PTSD. In the DBQ, the examiner determined that the Veteran's sleep apnea is not causally related to service, nor is it caused or aggravated by the Veteran's PTSD. The examiner explained that the Veteran's sleep disorder did not become clinically manifest until many years after leaving service. The insomnia and nightmares which the Veteran described are separate and distinct conditions from his sleep apnea. The examiner further explained that the Veteran's sleep apnea is caused by upper airway obstruction, and that this is not caused or aggravated by his PTSD. The examiner noted that while medications for PTSD could cause or aggravate sleep apnea, the Veteran used sedatives temporarily in the past, and that he is not taking medication for PTSD currently. Therefore, considering the evidence as a whole, the Board finds that medical evidence preponderating against the claim is the most probative, credible, and persuasive to the issue at hand. While the Veteran is competent to report symptoms of his sleep disorder, he does not have the requisite skill to make a medical determination that can link his sleep apnea to his PTSD condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, as mentioned previously, the Veteran has only complained of sleep impairment, to include difficulty falling asleep and staying asleep, which have consistently been shown to be symptoms of the Veteran's service-connected PTSD and already considered in rating his PTSD condition, and his diagnosed sleep apnea has not been related to his PTSD. As such, the Board finds that the preponderance of the evidence weighs against the Veteran's claim, thus, service connection for a sleep disorder, to include sleep apnea, secondary to PTSD is not warranted. Although the Veteran did not raise direct service connection for his sleep disorder, the Board notes that there is no evidence of an in-service incurrence of a sleep disorder, or any other in-service event leading to the Veteran's current sleep disorder, to include sleep apnea. Therefore, service connection for a sleep disorder, to include sleep apnea, cannot be granted on a direct basis. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Accordingly, service connection for sleep apnea on a direct and secondary basis, must be denied. ORDER Entitlement to service connection for a sleep disorder, to include sleep apnea, is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs