Citation Nr: 21015635 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-33 355A DATE: March 18, 2021 ORDER Entitlement to service connection for a sleep disorder as a distinct ratable entity is denied. FINDING OF FACT The Veteran did not have an independent sleep disorder. CONCLUSION OF LAW A distinct sleep disorder was not incurred in or aggravated by service, and a qualifying disability may not be presumed to be related to Persian Gulf service. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1137; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 through May 1992. The appellant is the Veteran’s son. In April 2015, the appellant requested, and was subsequently approved, to be substituted as the claimant for the purpose of processing the pending claim to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. 1. Entitlement to service connection for a sleep disorder Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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 -the so-called ‘nexus’ requirement.” See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present 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 even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). It is argued that the Veteran had a sleep disorder which was acquired through active service. Service treatment records do not document any relevant complaints, symptoms, treatment, or diagnoses. The first time that an onset of sleep disorder or sleep disturbance is mentioned in the Veteran’s medical records is approximately 1998, 6 years after the Veteran completed active service. The Veteran was afforded a VA examination in January 2014. The VA examiner concluded that while the Veteran had findings of chronic fatigue syndrome, it was less likely than not that the Veteran’s chronic fatigue syndrome is service connected or related to Gulf War Syndrome. The examiner reasoned that “since his [service treatment records] are silent for this diagnosis of any related [symptoms], and he has not had a medical [evaluation] to rule out other causes of his fatigue/physical weakness that would void the [possibility] of his symptoms being manifested from an unexplained illness.” An addendum medical opinion was issued in March 2020 regarding the interaction between the Veteran’s service-connected posttraumatic stress disorder (PTSD) and sleep disturbance. The examiner found that that “Since sleep disturbance was one of the symptoms used to diagnose his PTSD, he cannot be service-connected for a separate sleep disturbance. One cannot be service-connected for a mental health condition, and for the symptoms of that condition.” The examiner also noted that the Veteran’s PTSD “can easily account for his disturbed sleep. Indeed, the previous C&P examiner (9/20/13) already listed the following symptoms among those ‘clearly attributed to the Criterion A stressor/PTSD’: sleep disturbance.” An addendum medical opinion was issued in August 2020. The VA examiner noted that “based on the lack of evidence noted in the [service treatment records] or one year post service, it is not likely the Veteran’s symptoms of sleep disturbance noted in 2013-2014 were due to any medical [condition] documented [during] his military service.” A review of the medical evidence does not reveal a sleeping disorder. As a result, the Veteran does not have a sleeping disorder and has not had such a diagnosis or disability at any time during the claims period. McClain, supra. In the absence of a disability, compensation may not be awarded. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer, supra. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the VA medical opinions that the Veteran does not have a sleeping disorder as highly probative medical evidence on this point. The Board notes that the examiners rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiners noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds these medical opinions to be highly probative as they are adequately supported by additional rationale, particularly explaining why the Veteran cannot have sleep disturbances as separate from PTSD. The Veteran separated from active service in May 1992. A sleep disorder or symptoms of a sleep disorder were not noted during service. During separation, the Veteran specifically denied any relevant symptoms regarding a sleep disorder. Here, there is no competent evidence of a sleeping disorder during service or within one year of separation. To the extent that he reports that he had sleeping problems during service, such remote statement is at odds with the service records and his denial of sleeping problems at separation, and are further contradicted by the March 2020 medical opinion. In addition, compensation under section 3.317 is not warranted as the evidence does not show that it is part of a medically unexplained chronic multisymptom illness. Therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.317 is not warranted. The most probative evidence establishes that the Veteran has PTSD and that the sleep disturbance is related to PTSD, rather than an independent ratable entity or as an undiagnosed illness associated with Gulf War illness. Regulations establish that the same manifestations may not be evaluated under different diagnoses. 38 C.F.R. § 4.14. Even if the service connection classification of PTSD were amended to PTSD with sleep disturbance, there would be no change since the PTSD is already rated as 100 percent disabling. In sum, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for an independently ratable sleep disorder. The Board finds that the preponderance of the evidence is against the claim and the claims must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, 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.