Citation Nr: 21006505 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-53 316 DATE: February 4, 2021 ORDER New and material evidence with respect to the claim for service connection for posttraumatic stress disorder (PTSD) has not been received, and reopening the claim is denied. Entitlement to service connection for a sleep condition, to include insomnia, is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition other than PTSD is remanded. FINDINGS OF FACT 1. In an unappealed August 2012 rating decision the RO denied service connection for PTSD. 2. Evidence received since the August 2012 rating decision is either redundant or was previously of record or does not relate to an unestablished fact necessary to substantiate the claim; such evidence does not raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosed sleep disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for PTSD have not been met. 38 U.S.C. § §§ 5108, 7103(a); 38 C.F.R. § § 3.156. 2. The criteria for entitlement to service connection for a sleep condition, to include insomnia, have not been 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 duty in the United States Army from May 1968 to March 1970. In August 2019, the Board denied the Veteran’s request to reopen his service connection claim for PTSD, which the Veteran successfully appealed to the Court of Appeal for Veterans Claims (Court). In an August 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s denial to reopen his service connection claim for PTSD and remanded the issue for readjudication. Accordingly, the August 2019 Board decision is not a final decision as it has been vacated. The issue is now again before the Board for adjudication. In August 2019, the Board also remanded the Veteran’s service connection claim for a sleep condition, to include insomnia, to obtain a VA examination. The Veteran subsequently underwent a VA examination in February 2020. Therefore, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection 1. New and material evidence with respect to the claim for service connection for posttraumatic stress disorder (PTSD) has not been received, and reopening the claim is denied. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1) (2017). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). Turning to the Veteran’s service connection claim for PTSD, this claim was originally denied in an August 2012 rating decision on the basis that the Veteran did not meet the diagnostic criteria for PTSD. See August 2012 DBQ Initial PTSD Examination. The August 2012 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § § 3.156(b). In August 2014, the Veteran submitted a request to reopen the claim. See August 2014 VA 21-526EZ, Fully Developed Claim. The evidence received since the final August 2012 denial includes VA treatment records and a VA memo; however, the VA treatment records and VA memo do not document any current diagnosis or treatment of PTSD. As the Board has not received any new or material evidence related to this claim, the claim for service connection for PTSD is not reopened. As such, this claim must be denied. 2. Entitlement to service connection for a sleep condition, to include insomnia, is denied. The Veteran asserts that he has a sleep condition that is caused by military service. Specifically, he asserts that he is unable to sleep due to the ringing in his ears caused by his service-connected tinnitus. See October 2016 VA Form 9, Appeal to Board of Veterans’ Appeals. The Veteran states, the condition has become so bad that it renders him unable to sleep most nights and he finds himself tossing and turning. Id. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any sleep condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). To determine whether a diagnosis for a sleep condition could be made, the Veteran underwent a sleep study in April 2015 at the VA Clinic in Monroeville. However, there was insufficient sleep data to render a diagnosis of a sleep condition. In February 2020, the Veteran attended a VA examination. However, he did not undergo a sleep study. The VA examiner noted that the Veteran had to have a sleep study to confirm a diagnosis of a sleep condition. As a sleep study was not conducted, a diagnosis for a sleep condition could not be provided. Indeed, according to a September 2015 VA primary care note, following the Veteran’s last experience with a sleep study in April 2015, the Veteran stated that he refused to undergo another sleep study. While the Board is sympathetic to the trauma the Veteran states that he experienced following his sleep study in April 2015, as noted by the February 2020 VA examiner, a diagnosis for a sleep condition cannot be rendered without a completed sleep study. The Board notes that a veteran has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). Without this development, no determination can be made as to whether the Veteran has a current sleep disability or not. The Board acknowledges the Veteran’s statements that he has trouble falling and staying asleep. While the Veteran believes he has a current diagnosis of a sleep condition, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, absent a sleep study to enable a diagnosis to be made as to a sleep condition, there is no current disability upon which service connection can be granted. Lacking a diagnosis, entitlement to service connection for a sleep condition, to include insomnia, is denied. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric condition other than PTSD is remanded. The Veteran contends that he has a psychiatric condition that is related to his military service. As noted above, the Board addressed the Veteran’s claim for service connection for PTSD. However, the Board’s claim for a psychiatric condition other than PTSD has not been addressed. The Board notes that in August 2012, the VA examiner diagnosed the Veteran with depressive disorder, not otherwise specified. As noted above, in an August 2012 rating decision, the RO denied the Veteran’s service connection claim for PTSD. However, the RO did not consider the etiology of the Veteran’s diagnosis of depressive disorder, not otherwise specified. In this regard, the Board notes that in the case of Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009), it was held that a claim is not necessarily limited in scope to a single or particular diagnosis and should be construed based on the reasonable expectations of the non-expert, self-represented claimant, and the evidence developed in processing that claim. Id. at 5. Essentially, the Court found that the scope of a claim cannot be limited by the terminology used by the lay Veteran, and instead must include any disability reasonably encompassed by (1) the description of the claim, (2) the described symptoms, and (3) any other relevant evidence of record. Id. Accordingly, the Veteran’s service connection claim for PTSD is also construed as a service connection claim for any other psychiatric disorder for which the Veteran is diagnosed, to include his diagnosis of depressive disorder, not otherwise specified in August 2012. As the Board is precluded from adjudicating this claim in the first instance, a remand is necessary for the RO to develop and adjudicate the Veteran’s service connection claim for a psychiatric condition other than PTSD. The matter is REMANDED for the following action: 1. Adjudicate the claim of entitlement to service connection for a psychiatric condition other than PTSD, to include a depressive disorder. Conduct and development necessary to adjudicate the claim. 2. If the claim is denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.