Citation Nr: 21005663 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-29 806 DATE: February 2, 2021 ORDER Entitlement to service connection for a sleep disorder is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for peripheral vascular disease of the right lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for peripheral vascular disease of the left lower extremity is remanded. Entitlement to an effective date prior to October 20, 2011 for special monthly compensation (SMC) at the housebound rate is remanded. FINDING OF FACT The Veteran does not have a currently diagnosed sleep disorder; his chronic sleep impairment is a symptom of his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for a sleep disorder are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from March 1968 to January 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated May 2013 and September 2013 of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in a November 2017 decision, the Board remanded entitlement to initial ratings in excess of 20 percent for peripheral vascular disease of the right and left lower extremities, entitlement to service connection for hypertension, a gastrointestinal condition, tinnitus, and a sleep disorder, and entitlement to an effective date prior to March 7, 2012 for SMC at the housebound rate. In an April 2020 rating decision, the RO granted service connection for tinnitus, and in an August 2020 rating decision, the RO granted service connection for hypertension and gastroesophageal reflux disease (claimed as gastrointestinal condition). Those awards are considered a full grant of the benefits on appeal for those claims; therefore, the claims are no longer before the Board for appellate consideration. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, in the August 2020 rating decision, the RO assigned an earlier effective date of October 20, 2011 for the award of SMC at the housebound rate. Accordingly, the issue on appeal has been updated to reflect this partial grant. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for a sleep disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this matter, the Veteran asserts he is entitled to service connection for a sleep disorder, to include as secondary to his service-connected PTSD. On review of the available evidence, both lay and medical, the Board finds that the Veteran fails to meet the threshold element of his service connection claim; namely, a current disability. The Board acknowledges the Veteran’s competent lay reports of sleep disturbances, nightmares, and resulting tiredness, poor concentration, excessive fatigue, poor ability to attend to conversations, difficulty with short-term memory, lowered mood, and irritability. See September and October 2010 VA contract examination reports; Statements in Support of Claim dated February 2011, June 2011, and January 2013; private treatment records dated March 2011 to January 2012; June 2011 Correspondence; February 2013 VA contract examination report; June 2020 “Summary Psychotherapy Report.” However, neither his treating mental health providers nor VA contract examiners have diagnosed a separate sleep disorder. Rather, as explained by the November 2019 VA contract examiner, a psychologist, “[t]he claimed sleep disorder/anxiety are symptoms of the Veteran’s PTSD, and do not warrant separate individual diagnoses,” and the Veteran’s sleep “is impacted by his paranoia over safety in the home, and his anxiety. These are part of his PTSD presentation.” Notably, chronic sleep impairment is listed as a symptom of the Veteran’s PTSD in the November 2019 VA contract PTSD examination report. The laws authorizing veterans’ benefits provide benefits only where there is current disability. In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no competent evidence of a separately diagnosed sleep disorder, the claim for entitlement to service connection for a sleep disorder must be denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for peripheral vascular disease of the right lower extremity is remanded. 2. Entitlement to an initial rating in excess of 20 percent for peripheral vascular disease of the left lower extremity is remanded. The Veteran asserts he is entitled to initial ratings in excess of 20 percent for peripheral vascular disease of the right and left lower extremities. The Board finds that another remand is necessary to ensure substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In its November 2017 decision, the Board directed the RO to provide an additional VA examination to the Veteran to assess the current severity of his peripheral vascular disease of the right and left lower extremities. In pertinent part, the Board requested that the VA examiner provide an ankle/brachial index (ABI) for each lower extremity based on current testing or, if testing was not possible, indicate whether it was possible to estimate an ABI, and comment on the presence of symptoms including claudication on walking and trophic changes. In November 2019, an additional VA contract “Artery and Vein Conditions” examination was provided to the Veteran. In the November 2019 VA contract examination report, the examiner indicated that the Veteran did not have any symptoms of claudication, claudication pain, skin color changes of the extremities, or trophic changes of the skin, and noted that ABI testing was not performed. In an August 2020 VA addendum, the November 2019 VA contract examiner was again asked to provide an ABI for each lower extremity based on current testing. The examiner responded, “The Veteran was scheduled for an ABI, but was cancelled since it was not felt to be needed for this particular case. Veteran denied any peripheral vascular disease, the only thing he mentioned was that for his heart transplant surgery, one of his lower limb veins was stripped as part of surgery for grafting by the surgeon. On examination as well, he did not show any evidence of peripheral vascular disease. All his lower limb pulses were palpable.” On review of the November 2019 VA contract examination report and August 2020 VA addendum, the Board finds that remand is required to ensure compliance with its prior remand directives, and to provide an adequate VA examination. First, the November 2019 VA contract examiner did not perform ABI testing, did not provide an adequate explanation for why ABI testing “was not felt to be needed for this particular case,” and did not indicate whether it was possible to estimate an ABI, as directed in the Board’s November 2017 decision. These deficiencies must be remedied in an additional VA examination. Second, the November 2019 VA contract examiner failed to address lay evidence suggesting claudication on walking and trophic changes. Specifically, in a February 2020 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the examiner noted that the Veteran “gets leg cramps often,” and the Veteran has reported leg cramping, discomfort, and aching when walking in various lay statements, including those made to medical professionals. See March 2011 Correspondence (Veteran reported that his left leg “swells up during standing still, aches when walking and throbs when sitting for a long time…”); October 2011 Statement in Support of Claim (Veteran stated that his left leg aches all the time, mainly below the knee, and that, “I could no longer walk the time or distance I was once able to before the [coronary artery bypass graft] operation because of the fatigue and ache. My leg often goes to pins and needles and feels like it is going to pop like [a] balloon if I need to kneel down.”); June 2012 private cardiology report (provider noted that on treadmill stress testing, the Veteran “managed just 3 minutes 38 seconds, stopping with breathlessness, dizziness and some leg discomfort…”); February 2013 VA contract examination report (VA examiner noted, “[t]here has been bilateral, but mainly left-sided, intermittent claudication since soon after the coronary artery bypass graft. [The Veteran] describes a ‘cramp’ after walking for 100 yards, which settles within a few moments of resting and he can then walk for another 100 yards. There is also a calf cramp pain at night and a tingling affecting the lower third of the left leg as far as to toes which is relieved by elevation…”). Additionally, a photograph received November 2019, apparently of the Veteran’s left lower leg, shows that the Veteran does not have hair growth below his mid-calf. The Board also notes that the February 2013 VA contract examiner observed hair loss below the knees. As this absence of hair could be evidence of trophic changes, the VA examiner should address this evidence, as well as the aforementioned evidence suggesting claudication on walking. 3. Entitlement to an effective date prior to October 20, 2011 for SMC at the housebound rate is remanded. With regard to the Veteran’s claim for an earlier effective date for the award of SMC at the housebound rate, the Board finds that adjudication of that issue must be deferred pending resolution of his claims for increased ratings for peripheral vascular disease of the right and left lower extremities. This is because the outcome of the Veteran’s increased ratings claims impacts the outcome of the Veteran’s claim for an earlier effective date for SMC at the housebound rate. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran an additional VA examination, if possible, to determine the current severity of his peripheral vascular disease of the right and left lower extremities. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to respond to the following: (a) Identify all symptoms and manifestations of peripheral vascular disease for each lower extremity. (b) Provide an ankle/brachial index (ABI) for each lower extremity based on current testing. If an ABI test cannot be performed, the examiner should estimate an ABI for each lower extremity. If it is not possible to estimate an ABI, the examiner should explain why. (c) Comment on the presence of any of the following symptoms: i. Claudication on walking. If present, at what distance in yards does it occur, when walking at 2 miles an hour on a level grade? * The examiner should consider the following evidence: ** March 2011 Correspondence (Veteran reported that his left leg “swells up during standing still, aches when walking and throbs when sitting for a long time…”). ** October 2011 Statement in Support of Claim (Veteran stated that his left leg aches all the time, mainly below the knee, and that, “I could no longer walk the time or distance I was once able to before the [coronary artery bypass graft] operation because of the fatigue and ache. My leg often goes to pins and needles and feels like it is going to pop like [a] balloon if I need to kneel down.”). ** June 2012 private cardiology report (provider noted that on treadmill stress testing, the Veteran “managed just 3 minutes 38 seconds, stopping with breathlessness, dizziness and some leg discomfort…”). ** February 2013 VA contract examination report (VA examiner noted, “[t]here has been bilateral, but mainly left-sided, intermittent claudication since soon after the coronary artery bypass graft. [The Veteran] describes a ‘cramp’ after walking for 100 yards, which settles within a few moments of resting and he can then walk for another 100 yards. There is also a calf cramp pain at night and a tingling affecting the lower third of the left leg as far as to toes which is relieved by elevation…”). ** February 2020 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (examiner noted that the Veteran “gets leg cramps often…”). ii. Diminished or absent peripheral pulses. iii. Trophic changes, such as thin skin, absence of hair, or dystrophic nails. * The examiner should consider the following evidence: ** Photograph received November 2019, apparently of the Veteran’s left lower leg, showing no hair growth below his mid-calf. ** February 2013 VA contract examiner observed hair loss below the knees. iv. Persistent coldness of the lower extremity. v. Ischemic limb pain at rest. vi. Deep ischemic ulcers. (Continued on the next page) 2. Then, readjudicate the remanded claims on appeal. A. Rocktashel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.