Citation Nr: 21064449 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-28 653 DATE: October 20, 2021 ORDER Entitlement to service connection for a sleep disorder is denied. FINDING OF FACT The evidence does not establish that the Veteran has a separate and distinct disability of a sleep disorder, to include insomnia. CONCLUSION OF LAW The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1975 to February 1979. In September 2019, the Veteran testified at a Board hearing. The transcript is of record. In August 2021, the Veteran received notification that the Veterans Law Judge who conducted the hearing is no longer employed at the Board and was given an option for another hearing with 30 days to respond. To date, there has been no response. As such, the Board will proceed with adjudication of the claim. In January 2020, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a sleep disorder The Veteran contends he is entitled to service connection for a sleep disorder, to include insomnia, separate from his rating for major depressive disorder. For the following reasons, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "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. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board concludes that the Veteran does not have a separate and distinct diagnosis of a sleep condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Board remanded for a VA examination in order to determine the nature and etiology of the Veteran's reported sleep condition. In April 2021, he attended a VA examination for sleep apnea and reported difficulty going to sleep that he believed was due to anxiousness and stress. He denied any choking or gasping for air during sleep. The examiner concluded that there was no evidence subjectively or objectively to support a diagnosis of obstructive sleep apnea. The Veteran was also scheduled for a mental health VA examination to determine whether insomnia was a separate diagnosis from his service-connected acquired psychiatric condition but the examination was cancelled by the Veteran without good cause. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). The Board notes that the treatment records reveal complaints of difficulty sleeping and insomnia. In November 2019 the Veteran requested a nexus letter for insomnia from his treating clinician. The clinician declined to provide the letter explaining that insomnia is a symptom of depression and not a separate illness. See CAPRI Records January 2020. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). At the hearing the Veteran provided credible testimony as to the presence of his observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran reported an onset of insomnia in service and difficulty sleeping that has made life unmanageable at times. The Board has considered the Veteran's allegation that he has a condition of a sleep disorder separate from his psychiatric diagnosis; however, this is without probative value as it is a complex medical question which requires specialized knowledge as well as pertinent testing to diagnose. As a lay person, the Veteran does not have the requisite knowledge to provide the diagnosis. The Board finds that a separate disability of a sleep disorder is not established as the available evidence of record reveals that the Veteran's sleep difficulties are a symptom of depression and not a separate and distinct diagnosis. Furthermore, the Veteran is service connected for major depressive disorder effective January 18, 2005 with a 30 percent rating until September 29, 2015 and a 50 percent rating thereafter. One of the symptoms of major depressive disorder contemplated by the 30 percent rating is chronic sleep impairment; therefore, the Veteran is already being compensated for chronic sleep impairment as part of his disability rating for major depressive disorder. Thus, assigning a separate evaluation for the same symptoms would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Accordingly, the preponderance of the evidence is against the claim for service connection for sleep condition and the claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.