Citation Nr: 21074678 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-36 536 DATE: December 16, 2021 ORDER Entitlement to a separate rating for a sleep disorder is denied. REMANDED Entitlement to a separate rating for a headache disorder is remanded. FINDINGS 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 that is separate and apart from sleeping impairments caused by service connected disabilities. CONCLUSIONS OF LAW The criteria for service connection for a sleep disorder separate and apart from service connected disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from October 1977 to October 1981. In August 2018, September 2020, and March 2021, this claim was remanded for additional development. Specifically, the Board remanded these matters in March 2021 for additional development concerning whether the Veteran had disabilities of a sleep disorder and headache disorder separate and apart from the service connected disabilities. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Entitlement to a separate rating for a sleep disorder The Veteran contends that service connection is warranted for a sleep disorder. Specifically, he contends that his service connected cervical and lumbar spine disability caused pain which interrupted his sleep. The Board notes that the Veteran is currently service connected for a psychiatric disabilty to include an unspecified depressive disorder which also has been noted to result in a chronic sleep impairment. The initial question for the Board is whether the Veteran has a current sleep disorder separation and apart from this service connected psychiatric disabilty. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). A January 2020 VA mental disorder examination report shows that the Veteran was diagnosed with an unspecified depressive disorder with other relevant diagnosis to understand the condition as headaches, degenerative disc disease, and GERD. One of the symptoms noted of the mental disorder was a chronic sleep impairment. Other diagnosed psychiatric disabilities noted in the record were impulse control disorder, unspecified depressive disorder, and psychotic disorder. December 2020 VA lumbar and cervical spine examination reports showed that the Veteran reported conditions caused him not to get any major sleep because he could only fall asleep for 20 minutes here and there because his body was always in constant pain. A June 2021 VA sleep apnea disabilty benefits questionnaire (DBQ) shows that the Veteran was not diagnosed with sleep apnea. However, the Veteran was diagnosed with insomnia secondary to his mental disorder. The Board has reviewed the record and concludes that the competent evidence of record does not reflect that the Veteran has any diagnosed sleep disorder that is manifested by symptoms separate and distinct from the symptoms of his already service-connected psychiatric disability to include an unspecified depressive disorder. In short, the Board finds that the preponderance of the evidence establishes that the Veteran's sleep disturbances are manifestations of his service-connected psychiatric disability and not of a separately diagnosed sleep disorder. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (listing chronic sleep impairment as one of the symptoms to be considered when rating psychiatric disabilities). More importantly, the disability evaluation assigned for the Veteran's psychiatric disability throughout the course of this claim period has been based on symptoms that specifically included chronic sleep impairment. There is no competent evidence of a separate sleep disorder other than the sleep disturbances that are manifestations of his service-connected psychiatric disability. The Board observes that, even assuming that a distinct sleep disorder could be established based on the Veteran's reported symptoms, assigning it a separate, compensable rating would violate the rule against pyramiding, because the same symptoms would be rated twice. See 38 C.F.R. § 4.14 (pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided). The Board emphasizes that there is no dispute that the Veteran has sleep-related symptoms. However, such are being compensated as part and parcel of his service-connected psychiatric disability and a separate disability rating for the Veteran's sleep disorder is not warranted. The preponderance of the evidence is against the claim, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to a separate rating for a headache disorder is remanded. The Veteran contends that service connection is warranted for a headache disorder. Specifically, he contends that his service connected cervical and lumbar spine disabilty caused the headache condition and that a separate compensable rating for a headache disorder is warranted. Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A June 2021 VA headache DBQ shows that the Veteran was diagnosed with tension headaches. The examiner reported that the Veteran was convinced he had a problem with his brain that was the reason for his headaches. The examiner noted that the Veteran had one enlarged ventricle by MRI, but no hydrocephalus and no communications with normal opening pressures. The examiner noted that the Veteran's other physicians did not feel that the headaches were a result of the ventricular asymmetry but rather a result of chronic sinusitis. The examiner remarked that the etiology of the Veteran's headache disorder were allergies and sinusitis. The Board finds the medical opinion of record inadequate for determining whether the Veteran's headache disorder is secondary to his service-connected cervical and lumbar spine disabilities. Barr v. Nicholson, 21 Vet. App. 303 (2007). The June 2021 VA examiner's opinion in nonresponsive the issue at question. While the examiner remarked that the headache condition was caused by allergies and sinusitis, the remark that there was no correlation between the Veteran's cervical and lumbar spine disabilities fails to address whether the service connected disabilities aggravated the headache disorder. Therefore, a remand is necessary to obtain an adequate opinion regarding whether the headache disorder is caused or aggravated by service connected disabilities to include a cervical and lumbar spine disabilty. The matters are REMANDED for the following action: Provide the Veteran with an appropriate examination to determine the etiology of his headache disorder. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must review the VA examination reports of record. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the headache disorder had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the headache disorder is (1) proximately due to OR (2) aggravated by the service-connected cervical and/or lumbar spine disabilities. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.