Citation Nr: 21007730 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-43 146 DATE: February 10, 2021 ORDER Entitlement to service connection for a sleep disability is denied. REMANDED Entitlement to service connection for joint pain (claimed as fibromyalgia), to include as a manifestation of an undiagnosed illness, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to an increased rating in excess of 50 percent prior to August 20, 2020, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 3, 2020 is remanded. FINDING OF FACT A diagnosis of a sleep disability, to include sleep apnea and insomnia, has not been rendered during the period on appeal or during the period proximate thereto. CONCLUSION OF LAW The criteria for service connection for a sleep disability have not been met. 38 U.S.C. §§ 1101, 1110, 1117, 1118, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1980 to May 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in August 2014 and May 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran filed a claim to reopen claims for service connection for hypertension and fibromyalgia and service connection for type II diabetes mellitus and a sleep disability. In an August 2014 rating decision, the RO denied reopening of the claims for service connection for hypertension and fibromyalgia, and denied service connection for diabetes mellitus and a sleep disability. The Veteran filed a notice of disagreement with the denials in September 2014, and subsequently perfected an appeal of those issues in August 2017. In March 2019, the Board issued a decision in which it granted reopening of the claims for service connection for hypertension and fibromyalgia, but denied service connection for fibromyalgia, hypertension, and diabetes mellitus. The claim for service connection for a sleep disability was remanded for further development. As the Board has already addressed the question of whether reopening of the claims of service connection for fibromyalgia and hypertension was warranted in the March 2019 decision, the Board need not address new and material evidence herein. Ab v. Brown, 6 Vet. App. 35 (1993). The Veteran appealed the denials of service connection for hypertension, fibromyalgia and diabetes mellitus to the United States Court of Appeals for Veterans Claims (Court). A February 2020 order of the Court implemented a Joint Motion for Partial Remand, vacating and remanding that portion of the Board decision that denied service connection for the three disabilities. During the pendency of that appeal, in February 2017 the Veteran filed a claim for service connection for PTSD, and in a May 2017 rating decision the RO granted service connection for PTSD, assigning a 50 percent rating effective January 3, 2017. The Veteran filed a notice of disagreement as to the effective date and rating assigned in August 2017, and perfected an appeal of those issues in June 2019. In July 2020, the Board issued another decision in which it denied entitlement to an earlier effective date for the award of service connection for PTSD. This denial was unappealed and is therefore final. 38 C.F.R. § 20.1100. The Board further remanded the claim for an increased rating for PTSD, as well as the claims for service connection for a sleep disability, fibromyalgia, hypertension, and diabetes mellitus. The Veteran was requested to submit or authorize for release any further private treatment records in July 2020 and all outstanding VA treatment records were obtained. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran and his representative were notified in January 2021 correspondence that the appeal had been returned to the Board and placed on its docket, and that they had 90 days to submit additional evidence or argument in support of the claim. However, neither the Veteran nor the attorney have submitted any additional evidence or argument. As the Veteran and his attorney were afforded the opportunity to present argument or evidence and elected not to, the Board will proceed to address the appeal on the merits. 38 C.F.R. § 20.5. While on remand, in a rating decision issued in December 2020 the RO granted an increased rating of 70 percent for the Veteran’s PTSD, effective August 20, 2020. However, as this does not constitute a full grant of the benefits sought, that issue is still on appeal and before the Board. Ab, 6 Vet. App. 35. The issue has been recharacterized to reflect the award of the staged, increased rating. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In this case, the Veteran filed a formal claim for a TDIU in August 2020, based in part on his PTSD. As such, the TDIU claim is part and parcel of the increased rating claim for PTSD. While on remand the RO granted entitlement to a TDIU in a September 2020 rating decision, effective August 3, 2020. As such, the issue of entitlement to a TDIU is moot from that date forward. Id. However, as a TDIU was not granted for the entirety of the appellate period applicable to the increased rating claim, the grant does not bifurcate the TDIU issue. Harper v. Wilkie, 30 Vet. App. 356, 359–62 (2018). As such, the issue of entitlement to a TDIU prior to August 3, 2020 is still on appeal and before the Board. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). 38 C.F.R. § 3.317. A claimant’s signs or symptoms need not be shown by medical evidence; however, some objective indications of disability are required. 38 C.F.R. § 3.317(a). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). 1. Entitlement to service connection for a sleep disability. The Veteran asserts that he currently has a diagnosis of a sleep disability which is causally related to his period of service. While the Veteran is competent to report lay observable symptoms such as difficulty sleeping, he is not competent to formally diagnose himself with a sleep disability, whether insomnia or sleep apnea, as to do so requires medical knowledge and expertise beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana, 24 Vet. App. at 435. As such, the Veteran’s assertions that he has a current sleep disability are not competent and therefore entitled to no probative weight. The Veteran was provided with VA examinations in August 2014, March 2017, February 2020, and August 2020. In August 2014, the examiner stated that the Veteran had diagnoses of alcohol dependence and chronic pain that can interfere with sleep, but that under the DSM-5 criteria a diagnosis of insomnia was not warranted. In March 2017, a psychiatric examiner stated that the Veteran had diagnoses of PTSD and alcohol abuse disorder, and noted that these disabilities were manifested by sleep disturbances and chronic sleep impairment. In February 2020 a sleep apnea examiner stated that the Veteran did not currently have, nor had he ever had, a diagnosis of sleep apnea. The examiner noted that the Veteran denied a history of narcolepsy or sleep apnea at the time of the examination, instead stating that he had sleep disturbances and nightmares. A February 2020 psychiatric examiner further stated that while the Veteran met the criteria for diagnoses of PTSD and alcohol use disorder under the DSM-5, a diagnosis of insomnia or a separate sleep disorder was not warranted. The examiner stated that the Veteran’s PTSD was manifested by symptoms that included difficulty falling or staying asleep and restless sleep, and therefore a separate diagnosis based on sleep impairment was not warranted. Finally, in August 2020 another psychiatric examiner stated that the Veteran had diagnoses of PTSD, alcohol use disorder and major depressive disorder, which were manifested by chronic sleep impairment. The examiner did not provide a diagnosis of a separate sleep disability. There is no evidence that the above examiners were either not competent or credible. Further, each examiner based their opinions on both objective examinations of the Veteran and a review of the evidence associated with the claims file, and in the case of the psychiatric examiners the diagnostic criteria contained in the DSM-5. 38 C.F.R. § 4.125(a). As such, the Board finds that each respective examination report is entitled to significant probative weight as to the presence of a sleep disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In support of his claim, the Veteran submitted a private medical opinion in July 2016. However, the private examination did not provide a formal diagnosis of a sleep disability. The examiner noted that there were reports of sleep disturbances, snoring and apneic events, but did not provide a diagnosis of sleep apnea, instead simply noting that a sleep study should be performed to confirm a diagnosis. The private examiner then continued on to note that the Veteran’s long-standing history of alcohol abuse, including during service, certainly contributed significantly to the Veteran’s difficulty sleeping. The examiner explained that alcohol intake is known to disturb the normal phases of sleep and result in chronic sleep disturbance. The Veteran also submitted a private psychiatric evaluation in August 2020. This examiner noted diagnoses of PTSD and alcohol use disorder, but did not provide a diagnosis of a psychiatric disability. Instead, the private examiner stated that the chronic sleep impairment was a symptom of the diagnosed psychiatric disabilities. Treatment records associated with the file do not reflect a clear diagnosis of a wholly separate sleep disability, whether sleep apnea or another disability. Instead, treatment records generally reflect that the Veteran has chronic sleep impairment as a symptom of his service-connected PTSD. Records from the Social Security Administration (SSA) likewise are silent for any formal diagnosis of a sleep disability. Based on the foregoing, the Board finds that there is no evidence of a sleep disability either during the appellate period or proximate thereto. McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. While the evidence clearly reflects that the Veteran has a chronic sleep impairment, all of the evidence, including the VA and private examination of record, state that this is a symptom of the Veteran’s already service-connected PTSD or his alcohol use disorder. 38 C.F.R. § 3.301(c)(2), (d). The Veteran has not otherwise been diagnosed with a sleep disability of any kind. As there is no evidence of a diagnosed sleep disability, the Board finds that service connection for a sleep disability is not warranted on any basis. 38 C.F.R. §§ 3.102, 3.303; see Brammer, 3 Vet. App. at 225. The Board notes that the Veteran served in Southwest Asia, and further that sleep impairment is a recognized objective sign or symptom of a medically unexplained multisymptom illness (“MUCMI”) or an undiagnosed illness. 38 C.F.R. § 3.317(b). However, the Veteran’s documented sleep impairment has been attributed to a known etiology, specifically his PTSD and alcohol abuse disorder. As such, service connection for a sleep impairment as a manifestation of an undiagnosed illness or a MUCMI is not warranted in this case. 38 C.F.R. §§ 3.102, 3.317. The preponderance of the evidence weighs against a finding that the Veteran’s has a current diagnosis of a sleep disability, and the documented chronic sleep impairment has been attributed to a disability with a known etiology and pathophysiology. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for joint pain. VA obtained a medical examination concerning the Veteran’s claim for service connection for fibromyalgia in January 2008, during which the examiner simply noted that the Veteran did not have fibromyalgia. VA obtained additional opinions in May 2017 and February 2020, but both examiners again simply stated that the Veteran did not have an undiagnosed illness or a MUCMI. None of the examiners provided any rationale supporting their conclusion that the Veteran did not have an undiagnosed illness or a MUCMI. Nieves-Rodriguez, 22 Vet. App. 295. Further, despite the notations of joint pain none of the examiners stated the disabilities to which the reported joint pain was attributable. As such, the Board finds that a remand is warranted for a new opinion concerning the nature and etiology of the Veteran’s joint pain. 2. Entitlement to service connection for hypertension and diabetes mellitus. In July 2016, the Veteran submitted a private opinion which stated that the Veteran’s weight gain in service and post-service had resulted in his development of both hypertension and diabetes mellitus. Obesity per se is not a disease or injury and therefore may not be service connected on a direct basis. VA Gen. Coun. Prec. 1-2017 (Jan. 6, 2017); see 38 U.S.C. §§ 1110, 1131. Similarly, obesity is not a “disability” for the purposes of secondary service connection, nor may it be considered an in-service event. VA Gen. Coun. Prec. 1-2017. However, obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. VA Gen. Coun. Prec. 1-2017 (Jan. 6, 2017). Secondary service connection is also warranted when a disability is proximately due to or the result of a service-connected disease or injury. Id. When addressing the issue of proximate cause, three issues must be resolved: (1) whether the service-connected disability caused the obesity; (2) if so whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and, (3) whether the current disability would not have occurred but for the obesity caused by the service connected disability. Id. As the Veteran has submitted private opinions indicating that the Veteran’s hypertension and diabetes are the result of weight gain, the Board finds that the question of whether the post-service weight gain is attributable to the Veteran’s service-connected disabilities has been raised by the record. As such, a remand is necessary so that an opinion concerning whether the Veterans obesity caused the diabetes mellitus and hypertension, and in turn whether the obesity was the result of a service-connected disability or disabilities. 3. Entitlement to a TDIU. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning TDIU. As such, it is inextricably intertwined with the service connection claims being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). 4. Entitlement to an increased rating for PTSD. As to the claim for an increased rating for PTSD, psychiatric disabilities are rated based on the overall level of social and occupational impairment resulting from the disabilities. 38 C.F.R. § 4.126. As ratings for psychiatric disabilities are in part predicated on an assessment of occupational functioning, the Board finds that any determination as to entitlement to a TDIU may affect a determination concerning the claim for an increased rating for PTSD. As such, it is inextricably intertwined with the TDIU claim being remanded and must therefore be remanded as well. Harris, 1 Vet. App. 180. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s joint pain. The examiner should answer the following: a) Are the Veteran’s reports of joint and muscle pain attributable to a disability or disabilities with a known etiology and pathophysiology? b) If yes, for all such disabilities so identified, is it at least as likely as not (a fifty percent probability or greater) that the disability or disabilities are causally related to the Veteran’s active service? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the reported joint and muscle pain is a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness? A detailed rationale for the opinion must be provided. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hypertension and diabetes mellitus. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s obesity was caused by his service-connected disabilities? b) If so, is it at least as likely as not (a fifty percent probability or greater) that the obesity was a substantial factor in causing the Veteran’s: 1) Hypertension? 2) Type II diabetes mellitus? c) If so, is it at least as likely as not (a fifty percent probability or greater) that BUT FOR the obesity the Veteran would not have been diagnosed with: 1) Hypertension? 2) Type II diabetes mellitus? In answering questions (a) through (c) above, attention is invited to a July 2016 private opinion stating that the Veteran’s weight gain is the cause of his hypertension and sleep diabetes mellitus. A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.