Citation Nr: 21076501 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-35 383 DATE: December 27, 2021 ORDER Entitlement to service connection for a sleep disorder, to include as secondary to posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for headaches, to include as due to environmental hazard exposure in Southwest Asia and/or as secondary to PTSD, is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. FINDING OF FACT The Veteran has not had a diagnosed sleep disorder during the pendency of the appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for a sleep disorder, to include as secondary to PTSD, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1987 to July 1987, September 1990 to May 1991, October 2001 to October 2002, March 2003 to March 2004, and January 2010 to February 2011, with service in Southwest Asia and additional service in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office. In July 2019, the Board denied the Veteran's claims of entitlement to service connection for tinnitus and headaches. Additionally, the Board remanded the Veteran's claims of service connection for right lower extremity neuropathy and sleep disorder. The Veteran appealed the Board's July 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court issued a Memorandum Decision vacating the Board's denial of service connection for headaches and tinnitus and remanding the matters to the Board. Service Connection 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(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for sleep disorder, to include as secondary to PTSD. The Veteran contends that he has difficulty sleeping and insomnia related to his active service, to include as due to environmental hazard exposure in Southwest Asia or as secondary to service-connected PTSD. The Veteran has reported difficulty falling asleep and staying asleep. The VA medical record shows the Veteran complained of sleep difficulty and insomnia. Additionally, the Veteran reported in an August 2015 VA primary care note that he had been told that he snored, but the Veteran denied morning headaches and day-time somnolence. Pursuant to the July 2019 Board remand, the Veteran underwent a VA sleep disorder examination in March 2020. Following a review of the Veteran's electronic folder and an in-person examination, the VA examiner reported the Veteran did not have a diagnosis of a sleep disorder. The VA examiner determined the Veteran's difficulties with sleep were a symptom of his current PTSD diagnosis. The VA examiner determined the Veteran did not meet the diagnostic criteria for insomnia based on the current American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5). Further, the VA examiner reported the Veteran did not have any other medical condition that impacted his sleep. The Board finds that the probative evidence of record shows the Veteran does not have a confirmed current medical diagnosis of a sleep disorder which is separate and distinct from his service-connected PTSD. The Board recognizes the Veteran's complaints of symptoms of insomnia and difficulty sleeping; however, the Veteran's medical treatment records are absent a diagnosis of any sleep condition during the pendency of the Veteran's appeal. Moreover, the Board finds the March 2020 medical opinion to be highly probative evidence that the Veteran's noted insomnia and difficulty falling back asleep are symptoms of the Veteran's current PTSD diagnosis, and he may be compensated for them in the disability rating assigned for PTSD. The March 2020 medical opinion was supported by a fully articulated rationale with consideration of the Veteran's medical history and a thorough examination of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (Fed. Cir. 1997). As the probative evidence of record establishes the Veteran's symptoms of sleep disturbance are symptoms of the Veteran's current PTSD, the evidence does not establish a separate current disability for VA compensation purposes. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as due to environmental hazard exposure in Southwest Asia and as secondary to PTSD, is remanded. The Veteran contends that his headache condition is related to his active-duty service. The Court found that the August 2016 VA examination was inadequate to properly adjudicate the Veteran's claim of service connection for his headache disability. The August 2016 VA examination relied solely on the absence of a diagnosis of headaches in service and failed to consider whether the Veteran's lay statements supported a conclusion that the Veteran's headaches were incurred in service. The Board recognizes that lay persons are competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, remand is required to provide the Veteran an opinion that accurately addresses the Veteran's lay evidence of record and clearly addresses the Veteran's claimed condition. Miller v. Wilkie, 32 Vet. App. 249, 260 (2020); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the Board must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). The Veteran's August 2016 VA examination failed to address the Veteran's direct service connection theory of entitlement for his current headache disorder but, rather, addressed only whether headaches were related to service in Southwest Asia. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (holding availability of presumptive service connection does not preclude a grant of service connection on a direct basis). Additionally, the VA examination noted the Veteran's headaches were triggered by angry outbursts. As the Veteran's secondary service connection theory of entitlement was reasonably raised in the record, the medical opinion obtained on remand should address whether Veteran's headache condition is caused or aggravated by his service-connected PTSD. 2. Entitlement to service connection for tinnitus is remanded. The Veteran contends that he suffers from tinnitus related to his active-duty service. The Court concluded that the July 2016 VA examination improperly noted the Veteran's auditory thresholds taken at separation showed normal bilateral hearing. As noted by the Court, the "threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some level of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran's January 2011 audiogram at separation recorded the Veteran's hearing, when tested at 2000 Hertz, in his left ear as 25 decibels and in his right ear as 20 decibels. The Court noted that it was unclear if the factual predicate underpinning the VA examiner's opinion was correct. Accordingly, remand is required to provide the Veteran an examination addressing the Veteran's diagnosis of tinnitus with a factually accurate medical opinion with adequate supporting rationale. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). 3. Entitlement to service connection for right lower extremity neuropathy is remanded. The Veteran contends that he suffers from neuropathy of the right lower extremity related to active service, to include as secondary to his service-connected right knee disorder and low back disability. The July 2019 Board remand noted the Veteran's August 2016 VA examination documented evidence of constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness for the right lower extremity; however, the VA examiner only concluded that the Veteran did not have a diagnosis of diabetic peripheral neuropathy in the bilateral lower extremities. The July 2019 Board remand requested an examination to determine the nature of the Veteran's claimed bilateral lower extremity neuropathy, including an opinion as to whether the Veteran's neuropathy disorder was related to service, or alternatively, to his right knee disability or back disability. The record contains the March 2020 VA examination addressing the Veteran's neuropathy affecting the Veteran's left lower extremity as secondary to the Veteran's lumbosacral strain. However, no opinion is given regarding the Veteran's right leg nerve condition. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, when VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequately supported and explained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, remand is required to obtain a VA opinion that adequately and thoroughly addresses the Veteran's right lower extremity nerve condition, noted on the August 2016 VA examination as symptoms of mild constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness; in substantial compliance with the July 2019 Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's headache disorder. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis if appropriate. Following a review of the evidence of record, the examiner must opine as to: a) Whether the Veteran has a current diagnosis of a headache disorder. b) If not, please provide an opinion as to whether the Veteran's symptoms represent: 1) a medically unexplained chronic multi-symptom illness; 2) an undiagnosed illness; or, 3) is it at least as likely as not that the Veteran's reported symptoms represent a cluster of signs or symptoms typically seen in Gulf War Veterans? If the Veteran is found to have a diagnosis of a headache condition, please provide an opinion as to: c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's headache condition had its onset during or is otherwise etiologically related to active-duty service. If direct service connection is not found, please provide an opinion as to: d) Whether it is at least as likely as not (50 percent probability or more) the Veteran's headache condition, was proximately caused by or the result of, any of the Veteran's service-connected posttraumatic stress disorder (PTSD). e) Whether it is at least as likely as not (50 percent probability or more) the Veteran's headache condition was aggravated by, the Veteran's service-connected PTSD. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's tinnitus. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus had its onset during or is otherwise etiologically related to active-duty service. For the purposes of this examination please address the Veteran's bilateral hearing loss as reported on the Veteran's January 2011 VA audiogram. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's right lower extremity neuropathy. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, including nerve conduction studies and electromyography testing, and all clinical findings must be reported in detail, and correlated to a specific diagnosis if appropriate. Following a review of the evidence of record, the examiner must opine as to: a) Whether the Veteran has a current diagnosis of a nerve condition manifested by pain, paresthesias and/or dysesthesias, or numbness in the right lower extremity? b) If not, please provide an opinion as to whether the Veteran's symptoms represent: 1) a medically unexplained chronic multi-symptom illness; 2) an undiagnosed illness; or, 3) is it at least as likely as not that the Veteran's reported symptoms represent a cluster of signs or symptoms typically seen in Gulf War Veterans? If the Veteran is found to have a diagnosis of a nerve condition affecting the right lower extremity, please provide an opinion as to: c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's right lower extremity nerve condition had its onset during or is otherwise etiologically related to active-duty service. If direct service connection is not found, please provide an opinion as to: d) Whether it is at least as likely as not (50 percent probability or more) the Veteran's right lower extremity nerve condition, was proximately caused by or the result of, any of the Veteran's service-connected right knee disability or low back disability. e) Whether it is at least as likely as not (50 percent probability or more) the Veteran's right lower extremity nerve condition was aggravated by the Veteran's service-connected right knee disability or low back disability. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. M. D. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.