Citation Nr: 21003814 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-14 751 DATE: January 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to July 2, 2019, and in excess of 30 percent thereafter for unspecified anxiety disorder not otherwise specified (NOS) is denied. Entitlement to service connection for a sleep disorder is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. For the appeal period prior to July 2, 2019, the Veteran’s unspecified anxiety disorder was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication and without occupational social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the appeal period beginning on July 2, 2019, the Veteran’s unspecified anxiety disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks and without occupational and social impairment with reduced reliability. 3. The Veteran’s claimed sleep disorder was a symptom of his already service-connected unspecified anxiety disorder and was not a separate disability for compensation purposes. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to July 2, 2019 and in excess of 30 percent thereafter for unspecified anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.125, 4.126, 4.130, Diagnostic Code 9413. 2. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to April 1991, and October 2004 to November 2005. The Veteran’s awards and decorations for his service include a Combat Action Badge, among others. Regrettably, the Veteran died in April 2020. The appellant is his surviving spouse. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Montgomery, Alabama. This case was before the Board in February 2018, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Then, the case was most recently before the Board in May 2020, at which time the appeal was dismissed due to the Veteran’s death. The appellant was substituted in place of the Veteran in September 2020. The case has now been returned to the Board for appellate action. A February 2020 rating decision granted the Veteran's claim for service connection for degenerative arthritis of the spine and lumbosacral strain, left lower extremity radiculopathy, right lower extremity radiculopathy, tinnitus, trochanteris pain syndrome and impairment of the right thigh, limitation of extension of the right hip, limitation of flexion of the right hip. An initial rating was assigned for each of these disabilities. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Increased Rating – Unspecified Anxiety Disorder The appellant generally contends that the Veteran’s unspecified anxiety disorder symptoms were more severe than contemplated by the rating assigned. Specifically, before his death, the Veteran contended that his symptoms of flashbacks, nightmares, and sleep disturbances were more severe than contemplated by the ratings assigned. Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran’s case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Veteran’s unspecified anxiety disorder was rated under the General Rating Formula for Psychiatric Disabilities (General Rating Formula). 38 C.F.R. § 4.130. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442–43 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 10 percent rating is warranted if the disability is productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 30 percent rating is warranted if the disability is productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted if the disability is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material; forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Id. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. The Board notes that with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in December 2020. As such, the DSM-5 applies, and the GAF scores will not be considered. A review of the record reveals that the Veteran sought mental health treatment from VA and private facilities, as well as treatment for his other health needs. To the extent that the Veteran’s treatment records contain information relevant to the severity of his mental health, to include mental health screenings, the Board will summarize this evidence. Turning to the evidence, the Veteran reported that he experienced restless nights; nightmares; flashbacks; flinching at loud noises; and took prescription sleeping pills after returning from deployment. See VA Form 21-526 Veterans Application for Compensation or Pension, March 25, 2010. The Veteran was afforded a VA examination in November 2010. At this time, the Veteran reported he had problems sleeping, and indicated that when he “was over there [he] worked 12 hours on and 12 hours off and did night shift,” and after returning from deployment, he could not sleep. He reported that any loud noise shook him, and that when he was working, his coworkers would drop lids to startle him for amusement. He reported he came “unglued” with loud noises, woke up three times a night, had anger problems while driving, and stated he was more withdrawn from people. He denied depression, anxiety, or experiencing panic attacks. The Veteran was married twice, and divorced once due to “incompatibility.” He had two adult daughters from his first marriage, and had little contact with his children. He remarried, and resumed contact with his daughters when they were in high school for a time. He was still married to his second wife, described her as “wonderful,” and described his marriage as “great.” He had two step-children, whom he got along “great,” and four grandchildren from his step-daughters. He saw his step-children and grandchildren every week or two, and enjoyed playing with them. The Veteran stated he used to have friends over at his home for visits when he first married his second wife, but had not done this in years. They had friends from church, and other acquaintances, but did not hang out with anyone since he returned from Afghanistan. He reported they generally stayed home prior to deployment, but since deployment it was “just different.” He still went out with his wife to eat, occasionally went to his brother’s home, and spent less time with his friends. During the November 2010 VA examination, the Veteran reported symptoms of problems with sleep, discomfort in crowds, and diminished interest in socializing. Upon psychiatric examination, the Veteran was shown to have gait somewhat slow, posture unremarkable; psychomotor activity normal; normal speech; cooperative; friendly; attentive; guarded; normal affect; good mood; intact attention; oriented; normal thought process and content; without delusions; intact judgment; average intelligence; intact insight; and sleep impairment. His sleep impairment was described as sleeping approximately six hours a night, with nighttime awakenings when he goes to the bathroom, and goes back to sleep. Once or twice a week, he will go out to smoke before going back to sleep. He does not nap during the day, and reported good energy. He stated he tried to stay busy when he was not working. The Veteran endorsed flashbacks of sirens and rockets in his sleep approximately once per month, and the flashbacks were always about his military service. He denied hallucinations and did not have inappropriate behavior. There were no panic attacks nor suicidal or homicidal thoughts. The Veteran had good impulse control and did not have episodes of violence. He did not have problems with activities of daily living and was able to maintain minimal personal hygiene. The November 2010 VA examiner noted the Veteran’s remote and immediate memory were normal, and had mildly impaired recent memory. The Veteran endorsed some mild memory problems, and indicated he had an inability to remember anything he did not find interesting. He relied on writing things down and did not forget those things. Symptoms included recurrent distressing dreams, efforts to avoid activities, places, or people that arouse recollections of trauma, difficulty falling or staying asleep, irritability or outbursts of anger and hypervigilance. Other reported symptoms included an exaggerated startle response, flashbacks that are clarified as dreams, occurring approximately once per month, efforts to avoid sirens, loud noises, and crowds, irritability, and yelling at other drivers but denied angry outbursts, exaggerated startle response and constant hypervigilance. The examiner noted the symptoms appear globally mild. The Veteran attributed his symptoms of sleep problems, hypervigilance, exaggerated startle response, discomfort in crowds, and nightmares to stress exposure during deployment. The examiner was unemployed and not retired, and was laid off two months prior due to the company being between government contracts. He was hoping to be called back to work in a few more months. The Veteran denied unemployment was due to his unspecified anxiety disorder. The examiner noted the Veteran had good support system and high level of functioning and opined his unspecified anxiety disorder manifested in symptoms that were transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner noted the Veteran had mildly diminished social and family role involvement due to discomfort in crowds. In a November 2011 Correspondence, the Veteran reported psychiatric symptoms that included weekly flashbacks, nervousness at loud noises, and daily paranoia. In his April 2014 VA Form 9, the Veteran reported psychiatric symptoms that included flashbacks occurring once or twice a week, flinching or jumping at loud noises; going to the bathroom due to his nervousness and that he was feeling a little better but he still had psychiatric symptoms that “never go away.” The Veteran was afforded another VA examination in July 2019. At that time, the examiner diagnosed unspecified anxiety disorder and opined that the mental condition had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. Since his last examination, the Veteran’s second wife had passed away after 30 years of marriage and he was married to his third wife for two years. He reported his marriage was happy. He spent his free time fishing and playing golf, and practiced his faith. The Veteran remained unemployed after being laid off, and decided to retire from civilian work; and retired from the military at age 60. He did not take medication for anxiety or depression. He was prescribed medication for his insomnia about eight years prior, but the prescription had run out a year prior and the Veteran had not taken it since. He reported sleeping about five hours per night, and his sleep was interrupted by awakenings every one or two hours. He reported nightmares; that if he was approached from behind, he would “fall apart”; could not stand loud noises; and does not like car backfires. Symptoms attributable to his unspecified anxiety disorder included anxiety and chronic sleep impairment. Behavioral observations showed the Veteran arrived early, was neatly groomed; casually and cleanly dressed; appeared stated age; displayed direct eye contact, friendly, engaging, forthcoming with information, alert, full oriented, normal gait good mood and euthymic affect and appropriate. The examiner also noted that the Veteran’s thoughts were logical, linear, and goal-directed, that he denied suicidal and homicidal ideations, hallucinations, and delusions, that his memory was intact for immediate, recent, and remote recall and had intact insight, judgment, and impulse control. The examiner noted that there was no diagnosis of an unspecified sleep disorder because his insomnia was a symptom of the anxiety disorder and not a separate diagnosis. The Veteran was not a threat of danger or injury to himself or others. Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities. However, there is no indication from the treatment notes of record that the Veteran has reported mental health symptoms that are worse than those noted above. Based on the foregoing, the Board finds that an initial rating in excess of 10 percent prior to July 2, 2019, and in excess of 30 percent thereafter for unspecified anxiety disorder is not warranted. In this regard, the Board finds that such disability was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication prior to July 2, 2019; occupational social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks beginning July 2, 2019. Prior to July 2, 2019, impairment to mood was demonstrated as the Veteran reported chronic sleep impairment and disturbance, hypervigilance, exaggerated startle response, and decreased social interaction. Specifically, he reported flashbacks, nervousness, being withdrawn from friends and people, and that he woke up several times per night; and had discomfort in crowds and a diminished interest in socializing since his return from deployment. Some impairment to social relations was shown by the Veteran’s reports of having guests over less often than before deployment, and generally spending his time at home. However, the Veteran reported great relationships with his second wife, step-children, grandchildren, and that he continued to socialize with his family regularly. Specifically, the Veteran reported he still went out to eat with his wife, went to his brother’s home, and saw his step-children and grandchildren frequently. However, the Veteran did not report, and the evidence does not show that the Veteran’s social relationships were more than mildly impaired due to his unspecified anxiety disorder. Rather, the Board notes the Veteran consistently reported a wonderful marriage and great relationship with his family. He reported participation in religious events, went out to eat with his wife, enjoyed playing with his grandchildren, and had friends from church. No impairment to thinking was demonstrated. No impairment to work was demonstrated. In this regard, the Veteran specifically reported at his November 2010 VA examination that he was not unemployed due to his unspecified anxiety disorder, and he was hoping to return to work shortly. Moreover, the examiner noted only mild diminished social and family role involvement due to his discomfort in crowds. Judgment was not impaired as it was consistently found to be intact or good during the appeal period. School was not attempted during the appeal period. Therefore, the Board finds that the Veteran’s unspecified anxiety disorder showed occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication prior to July 2, 2019. Therefore, a higher rating is not warranted. Beginning July 2, 2019, impairment to mood was demonstrated as the Veteran reported continued chronic sleep impairment and disturbances, that he only slept about five hours per night and his sleep was interrupted every one or two hours. The Veteran also reported continuing nightmares, hypervigilance, exaggerated startle response, and dislike of loud noises. Little to no impairment to social relations was shown; rather, the Veteran reported he had a third wife and was happily married. He also denied taking any medications prescribed for insomnia or mental health symptoms; and spent his free time fishing, playing gold, and attending church. Little to no impairment to work was demonstrated. In this regard, the Veteran reported he chose to retire after being laid off from his last civilian employment, and also chose to retire at the age of 60 from the military. Judgment was not impaired as it was consistently found to be intact or good during the appeal period. School was not attempted during the appeal period. Therefore, the Board finds that the Veteran’s unspecified anxiety disorder showed occupational social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks beginning July 2, 2019 and that a higher rating is not warranted. In assessing the severity of his unspecified anxiety disorder, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board notes the contentions of the Veteran that his unspecified anxiety disorder was more severe than currently shown on examination; and the Board observes that the Veteran, while he was competent to report his observable symptoms, was not competent to report that the his mental health symptoms were of sufficient severity to warrant a higher rating under VA’s tables for rating such disabilities because such an opinion requires medical expertise which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). Despite the foregoing, the Board acknowledges the Veteran’s assertions that his symptoms of weekly flashbacks, nightmares, sleep disturbance, and exaggerated startle response warranted a higher rating. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher rating are not met. See Lendenmann, supra. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). This argument was therefore without merit. The Board has considered whether additional staged ratings under Hart, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout each period on appeal. Therefore, assigning additional staged ratings is not warranted. The appellant and/or the Veteran have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent prior to July 2, 2019; and in excess of 30 percent thereafter for unspecified anxiety disorder. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection – Sleep Disorder The appellant contends that the Veteran had a sleep disorder that was etiologically related to his active service. Specifically, the Veteran asserted that he had a disability manifested by sleep disturbance that was caused or aggravated by his service-connected unspecified anxiety disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131’s requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed. The term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Allen v. Brown, 7 Vet. App. 439 (1995); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The evidence of record shows that the Veteran’s report of sleep disturbance was merely a symptom of his service-connected unspecified anxiety disorder, and not actually a separate disability resulting in functional impairment in earning capacity. In fact, the Veteran himself reported that sleep disturbance was due to his unspecified anxiety disorder. See e.g. November 2010 VA examination report; see e.g. July 2019 VA examination report. Moreover, the Veteran was afforded a VA examination for his claimed sleep disorder in August 2019. At that time, the examiner opined the Veteran’s sleep disorder was a symptom of his anxiety disorder and not a separate diagnosis. See August 2019 VA examination report. Moreover, the Veteran asserted that his sleep disturbance symptoms were attributable to his anxiety and nightmares. The Board has considered the evidence in light of the case of Saunders v. Wilkie in which the United States Court of Appeals for the Federal Circuit addressed “the legal issue [of] whether pain without an accompanying pathology can constitute a “disability” under [38 U.S.C.] § 1110.” 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). The Federal Circuit held that the Veterans Court erred “as a matter of law in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a ‘disability’ under [38 U.S.C.] § 1131, because pain in the absence of a presently-diagnosed condition can cause functional impairment.” The Federal Circuit “conclude[d] that pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Further, the Federal Circuit held that “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that pain reaches the level of a functional impairment of earning capacity.” In this case, there is no credible persuasive evidence or allegation that the Veteran suffered from a separately diagnosed sleep disorder that was productive of functional impairment. To that end, the record contains no evidence or allegation that the Veteran experienced functional impairment associated with a sleep disorder. In addition, the record does not reflect, and the Veteran did not allege, that he suffered from impairment of earning capacity due to his claimed sleep disorder that is of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1609, __ Vet.App. __, 2020 WL 5200689. To the extent that the Veteran believed that he had a current sleep disorder, he was not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Rather, a diagnosis of a sleep disorder requires expertise that the Veteran has not established. Therefore, the Board gives more probative weight to the competent medical evidence. Based on the foregoing, the Board finds that the Veteran’s claimed sleep disorder does not constitute a disability for which service connection benefits may be granted. See Hunt v. Derwinski, 1 Vet. App. 292 (1991); see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a sleep disorder is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Service Connection – Bilateral Hearing Loss The appellant contends that the Veteran had bilateral hearing loss that was etiologically related to his active service. Specifically, the Veteran had contended that he had bilateral hearing loss that was worsened beyond its natural progression by his deployment to Afghanistan and that his exposure to hazardous noise during active service resulted in hearing loss. In the February 2018 remand, the Board noted that the Veteran had bilateral hearing loss prior to both periods of active service, and that he was afforded a VA audiological examination in November 2010. The February 2018 Board found the November 2010 opinion and addendum opinion inadequate to decide the claim. Specifically, the November 2010 opinion was contradictory and did not consider that the Army provided the Veteran’s hearing aids in 1991, during his first period of active service. Additionally, the February 2018 Board found the November 2010 opinion did not address whether the Veteran’s preexisting bilateral hearing loss was permanently aggravated beyond its natural progression by his periods of active service. Accordingly, the Board found an additional VA examination was necessary in order to adjudicate the claim. The Veteran was afforded the directed VA examination for his claimed bilateral hearing loss in August 2019. At that time, the examiner opined that the Veteran’s bilateral hearing loss was less likely than not as a result of his active service. Specifically, the examiner noted that the Veteran had preexisting hearing loss shown on audiograms from 1990 and 1993, without a significant threshold shift, had only a 15db decrease at the 500hz level without any other significant threshold shifts in hearing in 2006 as compared to 2004 and had occupational noise exposure. Therefore, given the documentation of the preexisting hearing loss with no evidence of noise injury during active service, and a positive history of the occupational noise exposure outside of active duty service, the examiner opined that his bilateral hearing loss was less likely than not caused by or the result of an even in military service. Additionally, the examiner noted that audiograms dated 1993 and 2006 revealed no aggravation of hearing loss beyond normal progression in military service. The Board finds the August 2019 VA opinions incomplete to decide the claim. In this regard, the examiner did not address the 1991 prescription of hearing aids by the Army, the Veteran’s lay statements and contentions regarding worsening hearing loss due to deployment and noise exposure sustained during his periods of active service and did not provide an adequate opinion as to whether bilateral hearing loss that clearly and unmistakably preexisted active service was not permanently aggravated beyond its natural progression by active service as directed by the February 2018 Board remand. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D’Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again required to obtain a VA addendum opinion that complies with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). 2. Entitlement to a TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final disposition of the claim of entitlement to service connection for bilateral hearing loss. Moreover, the appellant has not submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. A remand is necessary in order to provide the information requested on such form. The matters are REMANDED for the following action: 1. The appellant should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the appellant, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the appellant and her representative and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request that the appellant provide a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, or a comparable statement as to the information requested on such form. 3. Following the receipt of outstanding records, an addendum VA opinion must be obtained to determine the etiology of his claimed bilateral hearing loss. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (a) Is it clear and unmistakable (obvious, manifest, and undebatable) that bilateral hearing loss preexisted active service? (b) If so, is it clear and unmistakable (obvious, manifest, and undebatable) that the preexisting bilateral hearing loss WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress? (c) If the bilateral hearing loss did not preexist service, is it at least as likely as not (a probability of 50 percent or greater) had its onset in service or is etiologically related to service? The examiner should specifically address the prescription of hearing aids to the Veteran in 1991 during his first period of active service; and the Veteran’s lay statements and contentions that his hearing loss worsened during deployment. See November 2007 post-deployment reassessment report; see also February 2006 reports of hearing loss following deployment. The examiner must provide a complete rationale for all opinions and conclusions reached. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.