Citation Nr: 21067449 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-33 236 DATE: November 4, 2021 ORDER Entitlement to service connection for a sleep disorder, to include as secondary to an acquired psychiatric health disorder, is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a sleep disorder at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a sleep disorder on a direct or secondary basis, to include as secondary to an acquired psychiatric disorder, have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1989 to August 1990, with additional National Guard service. He also had a period of active duty for training (ACDUTRA) from May 1999 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. The Board notes that this matter was previously remanded in November 2018 and again in May 2021 for an examination in connection with the Veteran's claimed sleep disorder condition. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board's remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). This presumption may also be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Entitlement to service connection for a sleep disorder, to include as secondary to a psychiatric health disorder. The Veteran asserts that his claimed sleep disorder is related to service. Specifically, the Veteran argues that the claimed sleep apnea condition is due to his military service, including to incidences of abuse, mistreatment, and discrimination. The Veteran also asserts that he suffered from many punishments that were cruel and unusual and mental abuse at Fort Hood, Texas, while on active duty and throughout the entire duration. See Appellate Brief Received October 2021. The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnosis related to a sleep disability. The Veteran denied frequent trouble sleeping on his September 1989 enlistment Report of Medical History (ROMH), and the physician did not assess any sleep issues during the accompanying medical examination. At his separation from active duty in April 1990, the Veteran denied frequent trouble sleeping on his ROMH; the Veteran was clinically evaluated as normal during his separation medical examination, with no sleep issues noted by the examiner. When the Veteran enlisted in the National Guard in November 1997, he again denied frequent trouble sleeping and was clinically assessed as normal during the accompanying enlistment medical examination. Post service treatment records are silent for any current diagnoses of a sleep disorder. The Veteran's VA treatment records indicate that the Veteran received four hours of sleep at times. See CAPRI records received November 2019. During a November 2019 C & P examination, the examiner noted that the Veteran reported insomnia. Id. A November 2019 Neurology C&P examination consult notes Veteran has visual disturbances that occur at any time of the day but had not awakened him from sleeping in the last several days. Id. Additionally, a May 2003 treatment notes states that the Veteran requested to be checked for diabetes as it runs in his family and certain things he drinks including Pepsi and welches grape juice seems to put him to sleep. See CAPRI treatment Records Received August 2016. The Veteran was afforded a Disability Benefits Questionnaire (DBQ) examination regarding the claimed sleep disorder in June 2021. The examiner noted that an in- person examination of the Veteran was conducted and all available records were reviewed and considered when completing the examination report. The examiner opined that the claimed sleep disorder condition was less likely than not (less than 50 percent probability) incurred in or caused by an event, injury or illness in service. As rationale, the examiner stated that the Veteran has not been diagnosed with a sleep disorder. The examiner also stated that the Veteran's unspecified depressive disorder with anxious distress is confirmed but noted that there are no medical records that connect his depressive disorder with military service. Additionally, the examiner stated that the Veteran does not have a sleep disorder. Moreover, the examiner stated that the Veteran reports that he can not go to sleep and stay asleep, but will sleep at different times of the day and will get woken up by family members. Additionally, the examiner noted that the Veteran reported that his sleep has been inconsistent due to his schedule of work historically. The examiner noted that the Veteran reported sleep disturbances but stated that his work such as his work at Nissan night shift has been part of his sleep disturbance. The examiner explained that the Veteran can go to sleep and stay asleep eight to ten hours, but at times between his previous work and his family members, he gets woken up. Moreover, the examiner stated that the medical records indicate evidence of a sleep disturbance, but there are no records indicating a sleep disorder. The examiner stated that there are clearly complaints by the Veteran of sleep difficulties which have been indicated in the medical record such as insomnia, but stated that no clinician has ever diagnosed the Veteran with insomnia disorder because his sleep disturbance does not qualify as a DSM-V insomnia disorder. The examiner also explicitly stated that the Veteran does not have a sleep disorder and has never been, and is not currently, diagnosed with a sleep disorder. The Board notes that the Veteran is not service connected for diabetes nor is he service connected for any type of acquired psychiatric disability to include an unspecified depressive disorder with anxious distress. See October 2016 Rating Decision Codesheet. The Board assigns significant probative value to the June 2021 DBQ examination which is the only examination of record pertaining to his claimed sleep disorder. The Board finds that the June 2021 VA Disability Benefits Questionnaire (DBQ) medical findings are highly probative, as the examiner reviewed the file, listened to the Veteran's report of history, and physically examined the Veteran. It is clear that the examiner thoroughly considered, evaluated, and weighed the Veteran's reports and lay statements and thoroughly considered the record as he specifically referred to the Veteran's reported symptoms and explicitly acknowledged treatment records regarding sleep disturbances. The examiner also offered an alternative source of the Veteran's sleep issues to include his work schedule with full rationale. The Board acknowledges the Veteran's lay statements of reports of difficulty sleeping. The Veteran is competent to report symptoms of a disability. See Layno v. Brown, 6. Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board acknowledges the Veteran's reports of sleep disturbances, insomnia, and disruptive sleep patterns; however, the Veteran does not have the expertise or training to diagnose himself with a sleep disorder. The Veteran is not competent to diagnose a disability nor is he competent to establish the etiology of a disability. The Board affords great weight to the June 2021 DBQ examiner's opinion that the Veteran did not have a sleep disorder because he is a medically trained professional who demonstrated a thorough review of the Veteran's medical history and physically examined the Veteran. (Continued on the next page) In the absence of proof of a current disability, there can be no valid claim on a direct or secondary basis. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). With respect to secondary service connection for a sleep disability based on an acquired psychiatric disorder, as stated above, there is no service-connected mental disorder which can serve as the basis of secondary service connection. Service connection may not be granted under a secondary theory of entitlement when the claimed primary disability is not service-connected. Therefore, service connection cannot be established as a matter of law. Furthermore, even when taking into consideration the Veteran's beliefs of his claimed sleep disability being related to traumatic incidents in service or related to a psychiatric condition, the Board notes that as the record reflects, the Veteran is not service connected for a psychiatric disability; therefore, without a current disability and without a service-connected secondary disability, the Veteran is not entitled to service connection on the basis of a direct or secondary theory of entitlement. The benefit of the doubt doctrine is not applicable, and the claims must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.