Citation Nr: 21076895 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-03 364 DATE: December 28, 2021 ORDER Entitlement to service connection for a sleeping disorder, including sleep apnea and insomnia, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran had a diagnosis for sleep apnea at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence does not show that the Veteran has been diagnosed with insomnia or other sleeping disorder that is separate and distinct from the sleep impairment already contemplated in his assigned ratings for service-connected PTSD with depression. CONCLUSION OF LAW The criteria for service connection for a sleeping disorder, to include sleep apnea and insomnia, have not been met. 38 U.S.C. § § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.314. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1992 to December 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and May 2021, the Board remanded these matters for additional development. They have returned to the Board for further appellate review. As a preliminary matter, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran currently has a 100 percent combined evaluation for compensation, effective February 5, 2021. Service Connection Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). A diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or while the claim was pending, and it may support the existence of a current disability at the time of claim filing if it was close enough in time under the circumstances of the case. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). However, the mere presence of medical evidence of a diagnosis does not establish a valid diagnosis or current disability, as the Board must weigh the available evidence. In determining whether service connection is warranted for a disability, 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for a sleeping disorder, including sleep apnea and insomnia. The Veteran initially filed a claim for service connection for a sleeping disorder in September 2012. The Veteran did not specify the nature of his sleeping disorder. However, sleep apnea and insomnia were raised by the record and specifically addressed in the November 2018 and May 2021 Board remands. In his September 2013 notice of disagreement, the Veteran indicated that he has a sleeping disorder and PTSD from two tours in Iraq and surviving the September 11 attack on the Pentagon. In a November 2018 rating decision, the Veteran was awarded service connection for PTSD with an unspecified depressive disorder. The Veteran's assigned disability rating for his PTSD was based, in part, on his symptoms of chronic sleep impairment. The Veteran's service treatment records show complaints of sleeping problems and daytime fatigue during active service. In an August 2012 report of medical history and report of medical history performed prior to separation from service, the Veteran reported frequent trouble sleeping. The examining physician noted sleep issues and recommended a sleep study for the Veteran. In a September 2012 treatment record, the Veteran reported snoring, multiple awakenings, waking up with gag, and daytime fatigue. The Veteran examining physician indicated that a diagnosis of obstructive sleep apnea was possible. The physician referred the Veteran to neurology for a sleep study and to the pulmonary sleep clinic. The Veteran's post-service treatment records show complaints of sleeping difficulties and insomnia. The Veteran was provided a VA examination for mental health conditions in October 2012. The Veteran reported difficulty sleeping and the examiner noted chronic sleep impairment as a possible symptom of a psychiatric condition. The examiner did not diagnosis the Veteran with PTSD or other mental disorder. The examiner noted and discussed the Veteran's reported difficulties sleeping but found that she was unable to diagnoses or rule out a DSM-IV sleep disorder. In a June 2018 VA treatment record, the Veteran was provided a provisional diagnosis for sleep apnea and a referral for a sleep study. The Veteran was provided a VA examination for mental health conditions in October 2018. The Veteran was diagnosed with PTSD and an unspecified depressive disorder. The Veteran reported difficulty falling asleep, maintaining sleep, and restless sleep, including nightmares, shaking, and sweating. The Veteran also reported shaking and sweating during sleep. The Veteran reported that his sleep was generally not continuous or restorative. The examiner noted and discussed sleep disruption and chronic sleep impairment as symptoms of the Veteran's PTSD and depression. The Veteran was provided a sleep study in January 2019. The polysomnogram report found that the Veteran had normal sleep and no evidence of clinically significant sleep apnea. The report stated that the Veteran did not have notable snoring and only had a few respiratory disturbances, which was considered insufficient evidence of clinically significant sleep apnea, providing evidence against this claim. The Veteran was provided a VA examination for sleep apnea in January 2019. The Veteran denied a diagnosis of obstructive sleep apnea and stated that he had two sleep studies in the past that were negative for sleep apnea. The Veteran reported a history of sleep disturbances (insomnia/trouble falling asleep) that began during service. The examiner found that no diagnosis for sleep apnea was warranted. The examiner stated that there was no pathology to render a diagnosis and no evidence of an obstructive sleep apnea condition. The examiner noted that the January 2019 sleep study was normal and showed no evidence of obstructive sleep apnea. The examiner opined that the Veteran's claimed sleep disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In February 2021, the Veteran was provided a telephonic screening for insomnia severity as part of an initial screening for mental health conditions. The Veteran scored in the range for severe clinical insomnia. In March 2021, the Veteran was provided a mental health evaluation. The Veteran was diagnosed with PTSD. The evaluator found that the Veteran's insomnia and sleep disturbances were symptoms of his PTSD. The evaluator noted that the Veteran's insomnia was in the extreme range with frequent mid sleep waking and occasional terminal insomnia, averaging about 2 hours of sleep at night with accompanying fatigue, poor concentration, and irritable mood during the day. In April 2021, the Veteran was provided a VA examination for mental health conditions. The Veteran was diagnosed with PTSD. The Veteran reported difficulty sleeping in part due to nightmares. Sleep disturbance and chronic sleep impairment were noted as symptoms of the Veteran's PTSD. Pursuant to the May 2021 Board remand, the Veteran was provided an additional VA examination for sleep apnea in June 2021 to further address the Veteran's history of sleep disturbances. The examiner interviewed the Veteran and provided a review of the Veteran's medical history as it pertains to sleep disorders. The examiner found that the Veteran's claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner found that the Veteran does not have a clinical diagnosis of sleep apnea. The examiner noted and discussed the Veteran's January 2019 sleep study. The examiner found that there is no clinical diagnosis or work-up for insomnia in the Veteran's medical records. The examiner also noted that the Veteran is not currently being treated for a sleeping disorder. As to service connection for sleep apnea, the dispositive issue is whether the Veteran has a current diagnosis for the condition. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Veteran's treatment records, including a January 2019 sleep study, do not show a diagnosis for sleep apnea at any time during or approximate to the pendency of the claim. The June 2021 VA examination also found that the Veteran does not have a clinical diagnosis for sleep apnea. The Board finds the June 2021 VA medical opinion to be highly probative as the examiner thoroughly reviewed the claims file, conducted an interview and examination, addressed the relevant evidence of record, and provided an opinion supported by a clear and thorough rationale. Moreover, the examiner based the opinion on the Veteran's entire medical history, including diagnostic testing and the statements of the Veteran himself. The record only shows that the Veteran was provided provisional diagnoses for sleep apnea for the purposes of providing referrals and obtaining sleep studies. The record does not indicate that the Veteran's provisional diagnosis was ever confirmed with a sleep study or that the Veteran was otherwise diagnosed with or treated for sleep apnea. The best evidence in this case provides evidence against this claim. To the extent the Veteran alleges a diagnosis for sleep apnea, it appears to be based on self-diagnosis and not on any statement from qualified medical professionals. The Veteran is a layperson, lacking any specialized medical knowledge or training, and is not competent to provide such diagnoses in this case. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is important for the Veteran to understand that the medical findings regarding sleep apnea provide highly probative evidence against the claims that the Board cannot, unfortunately, ignore. Based on the above, the Board finds that the preponderance of the evidence is against finding that the Veteran had a diagnosis for sleep apnea at any time during or approximate to the pendency of the claim. As to service connection insomnia, the threshold issue is whether the Veteran has a diagnosed chronic sleep disorder that is separate and distinct from his symptoms associated with his service-connected PTSD with an unspecified depressive disorder. Here, the Veteran's current medical records do not document a separate or distinct diagnosis of insomnia or other sleep disorder. Rather, VA mental health examinations and evaluations performed in October 2018, March 2021, and April 2021 attributed the Veteran's sleep disturbances, chronic sleep impairment, and severe insomnia to his service-connected PTSD with depression. The Veteran's available medical record consistently show that the Veteran's symptoms of sleep impairment have been associated with his service-connected PTSD (Veteran's with PTSD will sometimes have trouble sleeping due to, for example, nightmares) with an unspecified depressive disorder. There is no evidence indicating that the Veteran has had any sleep disorder which is physical in nature or is related to something other than psychiatric impairment. The Veteran's psychiatric diagnosis encompasses a wide range of symptoms, including sleep disturbances, difficulty sleeping, difficulty staying asleep, chronic sleep impairment, nightmares, and severe insomnia. There is no evidence that any additional distinct symptomatology exists that is not encompassed by the Veteran's service-connected psychiatric disorders. While the Veteran clearly has functional impairment as a result of his insomnia and other sleep difficulties, such symptoms are contemplated by the disability evaluation currently assigned for his service-connected PTSD with depression. The Board cannot separately grant service connection for insomnia or other sleep disturbances when the Veteran is already service connected for these symptoms by his PTSD rating. To separately compensate the Veteran for the same symptoms of another service-connected disability would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Under 38 C.F.R. § 4.14, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). Based on the above, the Board finds that the preponderance of the evidence does not show that the Veteran has been diagnosed with insomnia or other sleeping disorder that is separate and distinct from the sleep impairment already contemplated in his assigned ratings for service-connected PTSD with depression. Accordingly, the Board finds that entitlement to service connection for a sleeping disorder, including sleep apnea and insomnia, is not warranted. 38 U.S.C. § § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.314. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg, 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.