Citation Nr: 21064312 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-36 521 DATE: October 19, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for insomnia is granted. REMANDED Entitlement to service connection for upper respiratory disability is remanded. Entitlement to service connection for right shoulder disability is remanded. FINDINGS OF FACT 1. The evidence of record does not establish that the Veteran has sleep apnea. 2. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's insomnia is caused by his service-connected posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection of insomnia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2010 to March 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Also, service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service-connected disability; or, aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Sleep apnea 2. Insomnia The Veteran seeks service connection for sleep disturbance. The Veteran filed a claim for sleep apnea, however during his March 2021 Board hearing the Veteran clarified the actual disability at issue was better described as insomnia. Nevertheless, the Veteran has not withdrawn his claim for service connection for sleep apnea. Review of the record does not indicate a diagnosis or recurrent symptoms of sleep apnea. Lacking a current diagnosis for sleep apnea, the Veteran does not meet the cornerstone element of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, an assessment of the remaining elements is not necessary, and service connection for sleep apnea is not warranted. Thus, the claim of entitlement to service connection for sleep apnea is denied because there is no current disability. Regarding insomnia, his medical record shows that he suffers and receives treatment for his insomnia and PTSD. The Veteran is diagnosed with insomnia as a separate diagnosis caused by his PTSD. The May 2018 VA examiner opined that the Veteran's insomnia was related to his psychological disability, rather than sleep apnea. The Board finds that service connection for insomnia is warranted. Indeed, the May 2018 VA examiner stated that the Veteran's insomnia is related to his PTSD. Further, the Federal Circuit has stated that service connection for multiple acquired psychiatric disorders is not necessarily precluded. See Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009) (holding that two psychiatric conditions "could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability"). Here, the Veteran is currently service connected for his PTSD, with alcohol use disorder. Additionally, the evidence shows that the Veteran's insomnia condition is caused by his service-connected PTSD. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Thus, service connection for insomnia is warranted. In light of the competent lay and medical evidence linking the Veteran's insomnia, a distinct disability, to his service-connected PTSD, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for insomnia is warranted because this disability is caused by his service-connected PTSD. As such, service connection is warranted. REASONS FOR REMAND 1. Upper respiratory disability The Veteran claims that respiratory disability is due to being exposed to burn pits while serving in the Southwest Asia theater of operations. The Veteran explained that he has suffered from a respiratory disability since returning home from the Gulf. To date, the Veteran has not received an examination for Gulf War syndrome. Accordingly, an examination must be scheduled to determine if the Veteran's respiratory disability is attributable to Gulf War syndrome. 2. Right shoulder disability The Veteran asserts he injured his right shoulder in service doing physical training, and he has had trouble with his right shoulder ever since. The Veteran was provided a VA examination as to his shoulder disabilities in February 2017. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The examination revealed abnormal range of motion of the right shoulder, but no nexus opinion was provided regarding whether the Veteran had a current right shoulder disability that was related to service. As the examination is not adequate for decision-making purposes, the Veteran must be provided a nexus opinion (examination if necessary) to address whether the Veteran has a current right shoulder disability and, if so, whether it is related to an in-service event, injury, or disease, including chronic wear and tear incurred during physical training in service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine if it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from Gulf War syndrome causing his respiratory disability. Specifically, he should be provided an examination to determine whether he is experiencing any undiagnosed illnesses or chronic multi-symptom illnesses. (Continued on the next page) 2. Obtain a nexus opinion (examination if necessary) to determine if it is at least as likely as not (50 percent probability or greater) that the Veteran has a right shoulder disability that is related to an in-service event, injury, or disease, including chronic wear and tear incurred during physical training in service. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.