Citation Nr: 21065286 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 12-30 514 DATE: October 25, 2021 ORDER Entitlement to service connection for a sleep disorder disability, secondary to a service-connected back disability, is GRANTED. FINDING OF FACT The preponderance of the evidence favors a finding that the Veteran's current sleep disorder is proximately due to, and/or aggravated by, the service-connected spinal disability. CONCLUSION OF LAW The criteria for service connection for a sleep disorder disability have been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from December 2006 to January 2008. The Veteran also served honorably in the U.S. Army from January 2008 to January 2011. Entitlement to service connection for a sleep disorder disability, secondary to a service-connected back disability, is granted. In December 2011, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated a claim for service connection for a sleep disorder. At that time, the Veteran relayed that the sleep disorder was secondary to pain in back and legs. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In December 2011, the Veteran underwent a VA general examination. In the resultant report, the examiner relayed that there was "no evidence of primary sleep disorder . . .." The examiner also relayed that, "Veteran does not demonstrate clinical presentation consistent with a primary sleep disorder, but is rather experiencing symptoms of pain and discomfort on a variable basis with regards to the back condition and radiculopathy symptoms that can interfere with his sleep. Again, sleep interference would be considered symptom of the lumbar spine condition and not a separate diagnostic entity in and of itself." In April 2013, the Veteran supplied testimony to the undesigned Veterans' Law Judge (VLJ). The Veteran testified that he underwent a sleep study while stationed at Fort Polk. However, the Veteran relayed that the study was conducted in Shreveport. The Veteran testified that his sleep-related symptoms had increased in severity after separation from the U.S. Army. The Veteran relayed that, "there were a couple of times I woke up in the middle of the night where my back was in a lot of pain or like my leg sometimes will -- it feels like they're restless throughout the day. So it makes it difficult sometimes to get to sleep at night." When questioned by the undersigned, the Veteran relayed that he currently endured difficulty sleeping due to pain (from the service-connected disabilities). In February 2015, the Veteran's service treatment records (STRs) were associated with the claims file. After review, the Board notes that the Veteran reported that he was not sleeping well in December 2007. In August 2017, the Veteran underwent a VA-administered sleep study. A pulmonologist interpreted the results of the sleep study, finding that it did not indicate that the Veteran currently endured sleep apnea. However, the examiner reported that the Veteran's claims file contained reported symptoms that were attributable to sleep apnea. In April 2020, the Board addressed the Veteran's claim for service connection for a sleep disorder, to include as secondary to a service-connected back disability. At that time, the Board noted that, "(t)he Veteran's appeal was returned to the Board without the AOJ securing the in-person examination directed in the April 2018 remand instructions. Consequently, an examination report was not generated that considered symptomology and history that the Veteran is competent to identify." As an initial matter, the Board observes that the Veteran's claims file does not currently contain a diagnosis for sleep apnea that was delivered after a requisite sleep study. However, the August 2017 examiner relayed that the Veteran's file contained symptom reports that could be attributable to sleep apnea. Nevertheless, throughout the claim period, the Veteran has competently and credibly reported a difficulty sleeping. Moreover, the claims file has multiple medical notations that indicate the Veteran's difficulty sleeping during the claim period. Consequently, the first requisite element for secondary service connection has been substantiated. See Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. The Board also notes that the Veteran is currently service connected for lumbar spine strain and disc disease, and left and right lower extremity radiculopathy. Importantly, the December 2011 VA examiner attributed the Veteran's sleep problems to his lumbar spine condition. Consequently, the Board finds that the second and third requisite elements for secondary service connection have been substantiated. See id. Ultimately, the preponderance of the evidence favors the Veteran's claim for a secondary service connection for a sleep disability during the claim period. Accordingly, this service-connection claim must be granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.