Citation Nr: 21072072 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-18 985A DATE: December 2, 2021 ORDER Entitlement to service connection for a sleep disorder to include as secondary to a service-connected bilateral foot disability is denied. REMANDED Entitlement to service connection for a skin disability to include eczema and atopic dermatitis is remanded. Entitlement to compensation based on total disability due to individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's sleep disorder is etiologically related to his service or is caused or aggravated by his service-connected bilateral foot disability with arthritis. CONCLUSION OF LAW The criteria for entitlement to service connection for a sleep disorder to include as secondary to a service-connected bilateral foot disability have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1976 to December 1979 and was honorably discharged. He also served from December 1979 to February 1982 but was discharged under other than honorable conditions. As an initial matter, the Board notes that a February 1982 administrative decision determined the Veteran's was entitled to an unconditional discharge for his first period of service from June 3, 1976 to June 2, 1980. However, for his period of service from June 3, 1980 to February 4, 1982, the Veteran was given a dishonorable discharge. As such, he is barred from receiving VA benefits for claims based on that period. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. These matters were previously before the Board in June 2019 and recently May 2021 but were remanded to obtain VA medical opinions. In September 2021 supplemental statement of the case (SSOC), his claims were again denied. These matters are again before the Board for adjudication. 1. Entitlement to service connection for a sleep disorder to include as secondary to a service-connected bilateral foot disability is denied. The Veteran is seeking service connection for his sleep disorder. Specifically, he asserts that it is caused by his arthritis pain. VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, 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). 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 Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). While the Veteran has not specifically identified what sleep disorder he is claiming, his VA treatment records show that he has on various occasions complained of having difficulty sleeping and having insufficient sleep during the night. In a May 2006 VA treatment record, he was assessed to have insomnia. His current VA treatment records further shows continuous complaints of difficulty sleeping. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that he has a current sleep disorder characterized as insomnia. However, the Board finds that his insomnia is not etiologically related to his military service as his service treatment records reveals no complaints, findings or diagnoses pertaining to a sleep disorder in service. Moreover, there is absolutely no medical evidence indicating that his sleep disorder began during his service or that it is related to any disease or injury in service. The evidence does not reflect any complaints of a sleep disorder until March 1991, nine years after service, when he reported having decreased sleep with increased back pain. As such, the preponderance of the evidence is against a finding that his sleep disorder was incurred during service. As the second element has not been satisfied, the Board finds that direct service connection is not warranted. The Board further finds that his sleep disorder is not etiologically related to his service-connected bilateral foot disability with arthritis. As previously discussed, he has a current diagnosis of insomnia and has been service connected for a bilateral foot disability and arthritis of his bilateral foot. However, the evidence fails to establish that there is any causal relationship between the two disabilities. Notably, the Veteran's VA treatment records consistently shows that his complaint of decreased sleep was associated with other disabilities that are not currently service-connected. Specifically, in March 1991, the Veteran's decreased sleep was associated with his increased back pain. He also reported difficulty sleeping and is awaken by leg cramps. In May 2006, he reported having financial difficulties at home and that his mood was down and had difficulty staying asleep. In a January 2020 VA treatment record for his diabetic neuropathy, he reported having burning and tingling sensation of his soles and on top of the feet. He stated that Gabapentin did not keep it down and that he takes Tramadol nightly to sleep. The Board notes that the Veteran was provided with a VA examination in September 2021 to determine whether his sleep disorder is secondary to his service-connected bilateral foot disability. However, the VA examiner opined that the Veteran's sleep disorder is less likely than not proximately due to or aggravated by his service-connected condition because the evidence does not indicate that he has a current sleep disorder. The Board acknowledge that the VA examiner's statement that there is no current sleep disorder contradicts the Board's current finding of a current sleep disability in this decision. However, in view of the available medical evidence showing no indication that his sleep disability is related to his bilateral foot disability with arthritis, the Board declines to remand for an additional opinion as it would resemble a fishing expedition for negative evidence. Indeed, obtaining such additional evidentiary development in this instance would only result in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59, 989 (2004). The Board has further considered the Veteran's own assertion that his sleep disorder is caused by his arthritis pain. Although he is competent to report his symptoms, he has not been shown to have the medical training or expertise to be competent to render an opinion as to the etiology of these disorders. 38 C.F.R. § 3.159 (a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Based on the foregoing evidence, the Board finds that the preponderance of the evidence is against a finding that his sleep disorder is etiologically related to his military service or secondary to his service-connected bilateral foot disability with arthritis. In this regard, the Board finds that the benefit of the doubt doctrine is not applicable and, therefore, his claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a skin disability to include eczema and atopic dermatitis is remanded. Unfortunately, the Board finds that an additional remand is warranted for the Veteran's skin disability. Specifically, the Board remanded the Veteran's claim in May 2021 to obtain a VA medical opinion which addresses whether his skin disability is related to any skin condition in service during his period of honorable service. On September 2021, a VA medical opinion was obtained. However, the Board finds that the VA medical opinion does not adequately address the etiology of the Veteran's skin disability. Specifically, the VA examiner based the negative medical opinion solely on the Veteran's January 1982 report of medical history at separation showing no endorsement of a skin disease. The VA examiner was further directed to render a medical opinion for the Veteran's honorable period of service, which has been determined to be from June 3, 1976 to June 3, 1980 in this decision. The Veteran's service treatment record indicates he was treated for a rash on his back in April 1979 and was diagnosed with tinea versicolor. This treatment was noted during his honorable period of service, but the VA examiner failed to consider or address whether his current eczema is etiologically related to the April 1979 rash treatment. Based on the foregoing reasons, the Board finds that the September 2021 VA medical opinion is inadequate for adjudication purposes. As such, the matter is further remanded for another VA medical opinion to address the etiology of the Veteran's skin disability. 2. Entitlement to compensation based on total disability due to individual unemployability (TDIU) is remanded. As the Board is remanding his service-connection claim for his skin disability, as the outcome of that claim may impact the adjudication of the TDIU claim. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, the Board will defer consideration of the TDIU claim at this time. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records related to the Veteran's skin disability and associate them with the claims file. 2. Schedule the Veteran for an examination for his skin disability. The VA examiner is requested to provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that his skin disability, to include atopic dermatitis and eczema is related to an in-service injury, event, or illness, to include his treatment for a skin rash in April 1979. In rendering a medical opinion, the examiner is requested to base an opinion only on the Veteran's service treatment records during his period of honorable service from June 3, 1976 to June 2, 1980. A complete and detailed rationale for the opinion should be provided by the examiner. 3. After, readjudicate the Veteran's service connection claim for a skin disability and TDIU. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.