Citation Nr: 1805722 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-15 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a sleep disorder, other than insomnia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from June 2005 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision in which the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs, in pertinent part, denied service connection for insomnia. By rating decision dated in September 2016, the RO granted service connection for unspecified anxiety disorder with insomnia, thus the issue on appeal has been characterized as set forth above. In May 2013, November 2015, and May 2017, the Board remanded this matter for further evidentiary development. FINDING OF FACT The preponderance of the competent evidence is against a finding that the Veteran has a sleep disorder, other than insomnia, that had an onset in service, or is otherwise related to service. CONCLUSION OF LAW A sleep disorder other than insomnia was not incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issues decided in the instant document, VA provided adequate notice in a letter sent to the Veteran in May 2013. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. VA has obtained all identified and available service and post-service treatment records for the Veteran. The record reflects that in the May 2017 remand, the Board requested that the Veteran be asked to identify all treatment for sleep complaints since March 2008 and to provide the necessary authorizations, noting that the Board was particularly interested in records from the Orlando Regional Medical Center (ORMC), to include the February 2016 sleep study and diagnosis of sleep apnea. The Veteran did not respond to the RO's letter requesting this information. Further, with regard to the duty to assist, a VA examination was obtained in January 2016 and an addendum opinion was obtained in July 2016. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained, and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. Also, neither the Veteran nor his representative raised any issues with the duty to notify or duty to assist. 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). The Board finds that appellate review may proceed without prejudice to the Veteran with respect to his claim. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Factual Background Service treatment records (STRs) show that the Veteran was treated for sleep problems and insomnia during service. In a VA DBQ (disability benefits questionnaire) examination for sleep apnea, dated in January 2016, it was noted that the Veteran did not have a diagnosis of sleep apnea. He reported having trouble sleeping, and that he was being treated by a private physician for anxiety based insomnia. The Veteran also reported his private physician had ordered a sleep study for him that had yet to be scheduled, and that he preferred to have the sleep study done by his private physician. In a VA DBQ addendum dated in July 2016, it was noted that the Veteran reported he continued to receive treatment from Dr. K., his primary physician, at ORMC, who prescribed sleep aids for him. He reported that he underwent a sleep study at ORMC in February 2016 and was diagnosed with sleep apnea and had been prescribed a CPAP machine. The examiner opined that it was less likely than not that the Veteran met the criteria for a separate and distinct sleep disorder diagnosis, to include insomnia, noting that the Veteran reported current issues with sleep, including issues with initiating and maintaining sleep, and that sleep issues was a component of the Veteran's current mental health condition of unspecified anxiety disorder. The examiner noted that the Veteran reported he experienced sleep issues in service, and that he was treated for anxiety and insomnia in service. The examiner indicated that sleep issues, including insomnia, are a symptom of mental health disorders, including depression and anxiety. III. Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran contends he has a sleep disorder which had its onset in service and has continued since service. STRs show he was treated for insomnia and sleep problems in service. Post-service there is competent evidence (a VA examiner's opinion from 2016) linking his insomnia to his anxiety disorder and service connection has been granted for an unspecified anxiety disorder with insomnia. With regard to a current sleep disability, however, in the 2016 VA examination and addendum opinions, the conclusion was that the Veteran did not have a diagnosis of sleep apnea and that he did not meet the criteria for a separate and distinct sleep disorder diagnosis, to include insomnia. The Board notes that in rendering the above opinions, the VA examiner reviewed the record, interviewed the Veteran, and included several points in the rationale, which included acknowledging the Veteran's in-service report and history of sleep problems, and which the Board finds sufficient to support the opinion provided. The Board therefore finds that these VA opinions are persuasive and probative on the issue of whether the Veteran has a sleep disorder other than insomnia that may be related to active service. While the Veteran has reported he was given a diagnosis of sleep apnea by a private physician, as noted above, VA has been unable to obtain any such treatment records. Thus, the record does not show that the Veteran has a current sleep disorder other than insomnia that may be related to service. See Brammer v. Derwinski, supra. Of record are statements by the Veteran that attribute a sleep condition to service. It is true that his lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In the instant case, however, the question of whether he has a sleep disorder other than insomnia that may be related to active service is not something that can be determined by mere observation. The Veteran is competent to report he had ongoing sleep problems and symptoms in service and to the present, however, the Board does not believe that a sleep disorder, as contrasted with sleep problems/symptoms, is subject to lay diagnosis. Accordingly, the Board concludes that the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for sleep disorder other than insomnia must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for a sleep disorder other than insomnia is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs