Citation Nr: 1753714	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO. 10-27 370	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for a chronic sleep disorder, to include as due to an undiagnosed illness. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Thompson, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from June 1999 to December 1999 and from June 2004 to November 2005, to include service in Southwest Asia, with additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the United States Army Reserve. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 

This matter was remanded by the Board in January 2013, October 2014, September 2016, and June 2017 for further development and has since been returned to the Board for appellate review. 


FINDING OF FACT

An undiagnosed illness manifested by sleep problems is related to the Veteran's active military service in Southwest Asia.


CONCLUSION OF LAW

The Veteran has a disability manifested by sleep problems that is the result of disease or injury incurred during active military service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge 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) (2017). 

In addition to the regulations cited above, because the Veteran served in the Southwest Asia Theater of Operations since August 2, 1990, service connection may also be established under 38 C.F.R. § 3.317 (2017). Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War.

For a disability due to undiagnosed illness and medically unexplained chronic multisymptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of Operations or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317 (a)(1) (2017).

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117 (d) warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9.

A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph 38 C.F.R. § 3.317 (a) (2) (ii) of this section for a medically unexplained chronic multisymptom illness.

A "medically unexplained chronic multisymptom illness" contemplates a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a) (2) (ii) (2017).

For purposes of 38 C.F.R. § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a) (4) (2017).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a) (3) (2017).

Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b) (2017).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

The Veteran seeks entitlement to service connection for a chronic sleep disorder, which he asserts is caused or aggravated by his military service, specifically service in Southwest Asia. 

The Veteran's STRs are silent regarding any complaints, treatment or diagnoses of a chronic sleep disorder. Specifically, on a May 2004 report of medical history, the Veteran indicated that he has never experienced frequent trouble sleeping. On the June 2004 Pre-Deployment Health Assessment, the Veteran indicated that he was in very good health, with no medical problems or concerns about his health. 

On the May 2007 Post-Deployment Health Reassessment the Veteran rated his health in the past month to be very good. The Veteran noted that his general health was somewhat better now than before he deployed. The Veteran listed skin diseases or rashes and an injured left shoulder as health concerns or conditions that were related to his deployment. The Veteran indicated that he did not have any persistent major concerns regarding health effects of being exposed to environmental hazards. 

On his October 2008 Application for Compensation, the Veteran indicated that he was not exposed to an environmental hazard in the Gulf War. 

In an April 2014 lay statement the Veteran stated that he has trouble falling asleep most nights. The Veteran stated that some nights he dreams about incidents that occurred during the deployment. The Veteran gets up throughout the night, sometimes twice a night, and is always tired throughout the day, and he feels that it affects his daily performance at his job. 

In an April 2014 lay statement, the Veteran's wife stated that she would consider the Veteran's sleep issues to be severe. The Veteran has difficulties going to sleep and staying asleep every night. The Veteran wakes her up three to four times a night due to his tossing and turning, snoring, or abruptly sitting straight up in bed from a dream of helicopter noise. She further stated that the Veteran is hyper-sensitive to all of his surroundings at night. The Veteran snores 95 percent of the time and he can rarely fall asleep. The Veteran stays up late at night and wakes up early in the mornings. She stated that because he wakes up every few hours, the Veteran averages four to five hours of sleep every night and complains of being tired. The Veteran's memory is patchy; he is very irritable and can be very short fused with controlling his temper. The Veteran's patience with the children varies from day to day depending on how much sleep he actually gets. 

A January 2016 VA examination for sleep apnea was conducted. The Veteran reported that he had trouble sleeping. The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  The examiner's rationale for this opinion was that the Veteran's December 2015 sleep study showed that he did not meet diagnostic criteria of obstructive sleep apnea (OSA). Therefore, the examiner concluded, the Veteran does not hold a diagnosis of OSA. In regards to the Veteran's wife's April 2014 lay statement, the examiner noted that there is a report of snoring, but no report of apneic episodes, turning blue, or "air hunger." Further, his wife's description of the Veteran's symptoms is consistent with nightmares, whereas OSA is a physical response to airway collapse during nocturnal breathing. The examiner concluded that nightmares and nocturnal hypervigilance are not consistent with OSA, which usually leads to somnolence due to physical exhaustion from lack of rest. 

On the September 2016 VA initial posttraumatic stress disorder (PTSD) examination, the Veteran reported that that he is irritable, angry, with labile mood, has social avoidance, and difficulty falling asleep. The examiner opined, however, that the Veteran does not have a mental health disorder, finding that there was no overt psychopathology or related dysfunction to support a psychiatric diagnosis. Moreover, the examiner found the Veteran's mental history unremarkable for any psychological complaints or treatment, and clinical impression from the examination suggested that the Veteran is "psychologically hardy." 

On the September 2016 VA medical opinion the examiner opined that the Veteran's symptoms of snoring, fatigue, difficulty falling asleep, irritability, being short-tempered, hyper-alertness, nightmares, and memory problems are less likely than not incurred in or caused by service. The examiner reasoned that the Veteran's symptoms do not fit into a known medical diagnosis and do not qualify as a separate independent medical condition such as OSA or sleep apnea nor any known sleep disorder, breathing disorder, or condition. On consultation of a medical treatise, the examiner noted there was no medical/physical diagnosis that matched the Veteran's symptoms as a whole. The Veteran's December 2015 sleep study showed snoring; however, the examiner noted, snoring does not diagnose OSA. Also, after researching a medical database, the examiner found that the Veteran's symptoms do not fit into a pattern or syndrome that is associated with the Gulf War, and the reported symptoms are thus less likely than not related to any specific exposure event during the Veteran's service in Southwest Asia. These symptoms are not associated nor found in conjunction with a toxic or infectious etiology. 

On the July 2017 VA mental health examination the Veteran reported that he continues to have trouble with initiating sleep and experiences irritability at home and work, hypervigilance, and exaggerated startle response. The examiner opined that the Veteran's sleep impairment symptoms are less likely than not incurred in or caused by service. The examiner reasoned that overall the Veteran reported symptoms of arousal (i.e. sleep disruption, hypervigilance, and exaggerated startle) but that these symptoms are mild and not significantly impairing occupationally or socially; therefore, they do not appear to have reached a level of pathology needed for the diagnosis of a mental disorder. In looking at the totality of evidence, the examiner noted that subjective complaints were reported by both the Veteran and his wife; however, in the absence of significant impairment, it does not appear that the Veteran had a diagnosable mental disorder. The Veteran has maintained his marriage and his employment, and describes both as strong. The examiner opined that some of what the Veteran experiences seems to be more normative to his military training, police training, and daily stress management. No diagnosis was rendered.  

The examiner discussed each reported symptom separately. Regarding the Veteran's claimed fatigue, the examiner noted that he denied "significant fatigue at this time" and that there was thus no disorder or undiagnosed condition manifested by fatigue. Regarding the Veteran's sleep disturbance, the examiner noted that he  had trouble initiating sleep but "does not report significant impairment as a result of the sleep disturbance" and that no diagnosed insomnia was present. Regarding his irritability, the examiner noted that it appeared to be "non-pathological at this time and does not reach the level of a disorder" and is rather likely linked to ordinary stresses of daily life. Regarding the Veteran's hypervigilance, the examiner similarly found it to be "likely a normative response to both his military and police training." Regarding his nightmares, the examiner found them to occur infrequently enough that they are not "pathological." Finally, regarding his memory complaints, the examiner found no memory problems to be present.  

On the July 2017 VA Gulf War examination the Veteran reported sleep disturbances. Specifically, the Veteran stated that he has a hard time falling asleep. The Veteran denied any chronic fatigue and denied any history of chronic fatigue syndrome, anemia, rheumatologic disorders, sleep apnea, or depression. He also denied experiencing memory problems. The Veteran endorsed having nightmares three times per week. The Veteran denied experiencing chemical, biological, radiological and nuclear defense or other environmental exposure events. The examiner opined that the Veteran does not have any "medical conditions . . . that may be considered an undiagnosed illness." The examiner opined that it is less likely than not that there are signs and symptoms of an undiagnosed illness or medically unexplained chronic multisymptom illness associated with the Veteran's reported complaints of fatigue, sleep disturbance, irritability, hyper-vigilance-nightmares, and memory problems. The examiner reasoned that "from a medical standpoint, this Veteran has no objective perceptible signs of any undiagnosed illness that may be attributed to his claimed symptoms. There are no known non-medical indicators that are capable of independent verification that this physician is able to professionally identify." The examiner concluded that it was less likely than not that the Veteran experienced any signs or symptoms of an undiagnosed illness associated with his reported symptoms of fatigue, sleep disturbance, irritability, hyper-vigilance and nightmares, and memory problems. 

In the instant case, the evidence tends to establish that the Veteran currently suffers from a disability manifested by sleep problems. Further, no underlying pathological basis for his complained-of sleep problems has been identified. To the contrary, multiple VA examiners have been unable to identify pathology on which to base a diagnosis of any disorder underlying the Veteran's reported symptoms. And although noting that there is no clinical diagnosis to account for it, the June 2017 VA psychiatric examiner specifically acknowledged that the Veteran continues to have "symptomology" of sleep problems. Accordingly, the Board is satisfied that the evidence supports a finding that the Veteran indeed has a qualifying disability for purposes of 38 C.F.R. § 3.317. In addition, there is objective evidence that the Veteran's problems with sleep are chronic-that is, the disability has existed for more than six months. Further, there is no evidence of willful misconduct or evidence tending to show that a condition was not incurred during active service in Southwest Asia. See 38 C.F.R. § 3.317(a)(4), (7).

Unlike service connection on a direct basis, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.317(c); Gutierrez, 19 Vet. App. at 1. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that, when reasonable doubt is resolved in his favor, the Veteran is entitled to service connection for a disability manifested by sleep problems as due to an undiagnosed illness. In this regard, the Board notes that 38 C.F.R. § 3.317 contemplates service connection for symptoms reported by the Veteran where they are independently observed or verified. The Veteran has competently and credibly asserted that he experiences problems sleeping. The Veteran's treatment providers and VA examiners have been unable to find any pathology to explain the Veteran's complaints, and they have at times noted objective evidence to support the complaints, which are supported by statements of the Veteran's wife regarding her observation and knowledge of the Veteran's symptoms. Consequently, insofar as the Veteran has complained of sleep problems, the Board finds that the regulatory requirements for presumptive service connection for undiagnosed illness manifested by sleep problems have been met under 38 C.F.R. § 3.317. Therefore, service connection for a disability manifested by sleep problems is warranted.


ORDER

Entitlement to service connection for a disability manifested by sleep problems is granted. 




____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs