Citation Nr: 21013766 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-20 135 DATE: March 10, 2021 ORDER Service connection for a sleep disturbance, other than service-connected obstructive sleep apnea, is denied. FINDING OF FACT A diagnosed sleep disturbance, separate and distinct from service-connected posttraumatic stress disorder (PTSD) or service-connected sleep apnea, has not been shown during the course of the appeal. CONCLUSION OF LAW The criteria for service connection for a sleep disturbance other than service-connected obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2001 to December 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction of the Veteran’s claims file currently resides with the Los Angeles, California RO. The Veteran testified at a Board hearing before the undersigned in September 2018. A transcript of the hearing is of record. In January 2020 and October 2020, the Board remanded, among others, the claim of entitlement to service connection for a sleep disturbance other than obstructive sleep apnea for evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In a January 2021 rating decision, the RO granted service connection for obstructive sleep apnea, assigning a rating of 50 percent effective December 13, 2013. As the Veteran has not yet appealed his initial rating assignment or his effective date, the Board finds that this grant of service connection constitutes a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. Service Connection During the September 2018 Board hearing, the Veteran’s former representative indicated that the Veteran suffered from a sleep disorder other than obstructive sleep apnea. See Hearing Tr. at 10. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. At the outset, the Board notes that the Veteran is service-connected for PTSD and obstructive sleep apnea. Pursuant to the October 2020 remand, the Veteran was afforded a VA sleep apnea and PTSD examination in November and December 2020, respectively. The November 2020 VA examiner opined that the Veteran’s sleep apnea was at least as likely as not due to his service-connected allergic rhinitis. The November 2020 VA examiner determined that the Veteran did not have any other sleep-related disorders. Furthermore, the December 2020 VA examiner determined that the Veteran’s PTSD symptoms included insomnia with resulting fatigue and impaired focus and concentration, and low energy and apathy, among others. The December 2020 VA examiner noted that the Veteran reported trouble falling asleep and maintaining sleep and that he woke up un-refreshed since the deployment. The December 2020 VA examiner described that the Veteran typically got four hours of fragmented sleep and woke up tired. The December 2020 VA examiner noted the Veteran’s service-connected sleep apnea and determined that there was no evidence of sleep terror, sleep walking, narcolepsy, or other parasomnias. The December 2020 VA examiner opined that the Veteran’s sleep disturbances were part and parcel of the symptom cluster associated with his service-connected PTSD and not a distinct disorder. After review of the record, the Board finds that service connection for a sleep disturbance other than service-connected sleep apnea, is not warranted. Turning first to the Veteran’s statements, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of symptoms of sleep disturbances, he is not competent to provide medical opinions regarding the causes or aggravating factors of that condition. As the Veteran has not shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Hence, his lay assertions in this regard have no probative value. In addressing the probative evidence of record, the Board finds that the negative opinion of the December 2020 VA examiner, provided after reviewing the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes the post-service treatment records that are absent for diagnoses or treatment for a sleep disturbance that is separate and distinct from his service-connected PTSD and sleep apnea symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion of record to the contrary. The most probative evidence indicates that the Veteran does not have a current sleep disability, separate and distinct from his service-connected PTSD or sleep apnea. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. In the absence of proof of a current sleep disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The objective results from the December 2020 VA examination show that the Veteran did not have sleep symptoms that were separate and distinct from the resulting symptoms of her service-connected PTSD. The Board has considered the decisions of the Court of Appeals for Veterans Claims in McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim) and Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (considering the application of McClain to a situation in which a disability manifests prior to the filing of a claim for VA benefits and then resolves before the claim is adjudicated). However, in this case, the Veteran has not been shown to have a current sleep disability distinct from his service-connected PTSD or service-connected sleep apnea at any time during the appeal period, or prior to the filing of his claim. Without probative evidence of a current disability, the claim must be denied. See Degmetich v. Brown, 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); Romanowsky, 26 Vet. App. at 293; McClain, 21 Vet. App. at 321. In sum, the most probative evidence indicates that the Veteran does not have a current sleep disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and service connection for a sleep disability must be denied. See 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). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.