Citation Nr: 1805958 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-09 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a sleep disorder other than insomnia. 2. Entitlement to a rating in excess of 10 percent for a left ankle disability. 3. Entitlement to a rating in excess of 10 percent for a left knee disability. REPRESENTATION Veteran represented by: Attorney ATTORNEY FOR THE BOARD J.L. Ivey, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 2000 to July 2004 and from September 2004 to December 2005, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The issues of entitlement to higher initial ratings for the left knee and left ankle were initially denied by the Board in a May 2014 decision. The Veteran timely appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In a June 2015 the Court vacated and remanded the Board's decision pursuant to a Joint Motion for Remand (JMR). Thereafter the Board remanded these issues for additional development in December 2015 and June 2017. Although there has been substantial compliance with the remand directives, another remand is necessary. The issues of entitlement to higher ratings for the left ankle and the left knee are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence fails to show a currently diagnosed sleep disorder other than insomnia. CONCLUSION OF LAW The criteria for service connection for a sleep disorder other than insomnia have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 decision). Facts and Discussion The Veteran has suggested that he may have a sleep disorder other than insomnia; specifically, he reported that his sleep improves with the use of his father's CPAP machine. The first element of service connection is current disability. In the present case, the Veteran's only diagnosed sleep disability is insomnia, which is a manifestation of his service-connected posttraumatic stress disorder (PTSD). Because the Veteran asserted that use of a CPAP machine improved his sleep, he was afforded a sleep study and a VA sleep apnea examination in August 2017. The August 2017 VA examiner reviewed the claims file, interviewed the Veteran and examined him. The Veteran reported longstanding snoring, some apneas, and daytime fatigue. He also reported treatment with bupropion, which is for psychiatric disabilities. The contemporaneous sleep study, also dated August 2017, revealed primary snoring (in the supine position) with no evidence of disordered breathing. He was advised to lose weight and treat any upper airway congestion as initial measures for his mild to moderate snoring. He was also advised to extend his total sleep time, restrict caffeine, restrict nighttime activity with excessive light exposure prior to sleep, and develop a regular sleep schedule. The examiner reviewed the claims file and stated that, besides insomnia, there was no additional sleep disorder noted in the Veteran's records and there was no other current sleep disorder present based on the in-person interview. The Board finds that the preponderance of the evidence shows no sleep disorder diagnosis other than insomnia, for which the Veteran is already compensated. The Veteran asserted symptoms included longstanding snoring, apneas, and daytime fatigue. Daytime fatigue is a manifestation of insomnia and a duly conducted sleep study revealed no apneas. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). In reaching this decision, the Board notes that the sleep study did make a diagnosis of snoring. A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). The question of whether a symptom such as snoring or, for example, pain could constitute a disability for purposes of the VA compensation laws and regulations is one that the courts have not definitively answered. See Joyner v. McDonald, 766 F.3d 1393, 1396, n. 1 (Fed. Cir. 2014) (specifically declining to reach the question of whether pain alone can constitute a disability under 38 U.S.C.A. §§ 1110 and 1131); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) ("Mr. Sanchez-Benitez presents an interesting, indeed perplexing, question, but not one that we need or can decide in this appeal"). However, in Sanchez-Benitez, the Federal Circuit held that, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of disability that has resulted from a disease or injury that occurred in service. Id. at 1361-1362. In this case, the above evidence and analysis reflects that the Veteran's symptom of snoring is not due to disease or injury. It follows that it is not due to disease or injury in service. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for sleep apnea. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a sleep disorder other than insomnia is denied. REMAND In June 2017, the Board remanded the issues of entitlement to higher evaluations for the left ankle and left knee disabilities. Since then, the U.S. Court of Appeals for Veteran's Claims (the Court) issued the decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." (emphasis added). In light of these decisions, the Board finds that new VA examinations should be provided addressing the Veteran's left ankle and left knee disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Updated VA treatment notes should also be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment notes and associate them with the claims file. 2. 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 the nature, extent and severity of his left ankle and left knee symptoms and the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence 3. Schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his left knee and left ankle disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all left knee and left ankle pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the above development and any other additional development deemed appropriate, readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters 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. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs