Citation Nr: 21008339 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 14-34 838 DATE: February 16, 2021 ORDER Service connection for a sleep disorder is denied. REMANDED Entitlement to a compensable rating for bilateral pinguecula is remanded. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current disability of a sleep disorder separate and distinct from insomnia associated with his service-connected posttraumatic stress disorder (PTSD), and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSION OF LAW The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2008 to March 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2014 by a Department of Veterans Affairs (VA) Regional Office. In November 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In September 2017, the Board remanded the issues on appeal, as well as a claim for service connection for hemorrhoids, for additional development. While on remand, an October 2020 rating decision awarded service connection for insomnia, claimed as a sleep disorder, and hemorrhoids. As such are full grants of the benefit sought on appeal with respect to such issues, they are no longer before the Board. The remaining issues now return for further appellate consideration. 1. Entitlement to service connection for a sleep disorder, including sleep apnea, to include as secondary to service-connected PTSD with depression, anxiety, insomnia, and residuals of traumatic brain injury (TBI). In documents of record and at his November 2015 Board hearing, the Veteran contends that his sleep disorder, to include sleep apnea, had its onset during active duty or, in the alternative, is caused or aggravated by his service-connected PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). However, pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Upon a review of the record, the Board finds that at no time during the pendency of the claim does the Veteran have a current disability of a sleep disorder separate and distinct from insomnia associated with his service-connected PTSD, and the record does not contain a recent diagnosis of disability prior to his filing of a claim. In this regard, the Veteran’s VA and private treatment records are negative for a diagnosis of a sleep disorder other than insomnia, to include sleep apnea. At a December 2013 VA examination, the Veteran described a history of loud snoring and reports from friends that he appeared to stop breathing at times. He did not require continuous medication required for control of a sleep condition, and he denied use of a CPAP machine. He endorsed symptoms of persistent daytime hypersomnolence. The Veteran underwent a sleep study in connection with the examination, which was negative for objective findings of sleep apnea: “[n]o significant obstructive sleep apnea was seen during the recorded time . . . . Moderate snoring was noted.” The Veteran was afforded another VA examination in October 2020, at which time the examiner noted that the Veteran had never been diagnosed with sleep apnea. The Veteran endorsed current symptoms of insomnia and fatigue and complained of difficulty in falling asleep and reported that he could not relax to establish sleep. He reported being prescribed an antidepressant medication, which helped him sleep. The examiner noted that the Veteran experienced persistent daytime hypersomnolence; however, found that the Veteran had not had a recent sleep study and had never been treated for sleep apnea. In an accompanying opinion, the examiner explained that the Veteran’s issues with insomnia were symptoms of his service-connected PTSD with depression and anxiety, to include residuals of a TBI. She noted that the Veteran self-reported issues with insomnia and chronic sleep impairment related to his “mind racing and thinking about things.” The examiner attributed these symptoms to the Veteran’s anxiety associated with his PTSD, and determined that the Veteran did not have a separate diagnosis of insomnia disorder. Indeed, several VA PTSD examinations of record show that the Veteran’s PTSD manifests in multiple symptoms, including sleep disturbance, chronic sleep impairment, and insomnia. Furthermore, as noted previously, the October 2020 rating decision awarded service connection for insomnia associated with the Veteran’s PTSD. Moreover, the Veteran, as a lay person, is not competent to offer a diagnosis of a sleep disorder, to include sleep apnea, as he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires the administration and interpretation of a diagnostic test, to include a sleep study. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis of a sleep disorder, to include sleep apnea. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Furthermore, while the Veteran reported at his November 2015 Board hearing that he had been diagnosed with sleep apnea, the objective evidence of record, to include a December 2013 sleep study, contradicts his testimony. Thus, such report is not credible. Consequently, the Veteran’s statements as to the presence of a current sleep disorder, to include sleep apnea, are afforded no probative weight. Therefore, based on the foregoing, the Board finds that at no time during the pendency of the claim does the Veteran have a current disability of a sleep disorder separate and distinct from insomnia associated with his service-connected PTSD, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. Consequently, service connection for a sleep disorder is not warranted. 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 claims, that doctrine is not applicable and service connection for a sleep disorder must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to a compensable rating for bilateral pinguecula. The Board first notes that since the issuance of the most recent supplemental statement of the case (SSOC) in November 2020, and prior to the transfer of the case to the Board, additional VA medical treatment records were added to the record. A review of these records reflects that they are pertinent to the Veteran’s claim for an increased rating for bilateral pinguecula. As the records were not submitted by the Veteran, and because they were added to the file after the issuance of the SSOC but prior to the transfer of the case to the Board, a remand is necessary for the issuance of a SSOC that considers such additional records. 38 C.F.R. §§ 19.31, 19.37. Additionally, the Board notes that the Veteran’s bilateral pinguecula are evaluated under 38 C.F.R. § 4.79, Diagnostic Code 6037, which instructs adjudicators to evaluate pinguecula based on disfigurement, using the criteria set forth in 38 C.F.R. § 4.118, Diagnostic Code 7800. This diagnostic code enumerates eight characteristics of disfigurement, six of which include some reference to the size or total area of the scar(s) under consideration. The Board acknowledges that pinguecula may not be considered “scarring” in the medical sense of the term; however, VA regulations treat them as such for the purpose of evaluating the severity of the disability. Therefore, the sizes of the Veteran’s pingueculas are information that is necessary to properly adjudicate his claim. Consequently, as the VA examinations conducted to date address only visual impairment, the Board finds that a remand is necessary in order to afford the Veteran a VA examination evaluating his bilateral pinguecula based on scarring. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate examiner to determine the current severity of his service-connected bilateral pinguecula based on scarring/disfigurement. The record, to include a copy of this Remand, should be provided to the examiner and all indicated tests should be conducted. The examiner should describe the nature and severity of the manifestations of the Veteran’s bilateral pinguecula, to include any resulting functional impairment. In this regard, the examiner should identify the types of scarring/disfigurement caused by the pinguecula, to include a measurement of the approximate size of each pinguecula, as well as individual and combined total areas for the pingueculas in both eyes. In this regard, the Board notes that while pinguecula may not be considered “scarring” or “disfigurement” in the medical sense of the terms, VA regulations treat them as such for the purpose of evaluating and rating the severity of the disability. A rationale for any opinion offered should be provided. 2. Thereafter, readjudicate the Veteran’s claim based on the entirety of the evidence, to include the treatment records associated with the file since the issuance of the November 2020 SSOC. If the claim remains denied, issue the Veteran and his representative a supplemental statement of the case. An appropriate time should be allowed for response. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.