Citation Nr: 21021036 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-02 587 DATE: April 9, 2021 REMANDED Entitlement to service connection for sleep disturbances, claimed as secondary to service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served in the Army Reserve, to include a period of active duty for training from July 2010 to December 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2017 by a Department of Veterans Affairs (VA) Regional Office. In accordance with his request, the Veteran was scheduled for a Board hearing before a Veterans Law Judge in October 2019; however, he failed to appear for it. To date, he has not presented good cause for his failure to attend and, as such, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.603(d). In December 2019, the Board, as relevant, denied service connection for sleep disturbances. The Veteran subsequently appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 decision, the Court granted the Veteran’s and the Secretary of the VA’s (the parties’) Joint Motion for Partial Remand (JMPR), which vacated and remanded the December 2019 Board decision as to such denial. The case now returns for further appellant consideration. The Board observes that, following the issuance of the December 2017 statement of the case, additional evidence was associated with the record. While the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence, his claim is being remanded such that the AOJ will have an opportunity to consider it in the readjudication of his claim. Thus, no prejudice results to him in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. Entitlement to service connection for sleep disturbances, claimed as secondary to service-connected left knee disability. In the December 2019 decision, the Board found that the Veteran’s sleep disturbance was a symptom, rather than a disability for VA purposes, and a separate compensable rating for such (apart from that already assigned for his service-connected narcolepsy) was precluded under the rule against pyramiding. In reaching such decision, the Board relied upon the fact that the Veteran’s medical provides had consistently and competently attributed his symptom of sleep disturbance to his service-connected narcolepsy, and the Veteran had not contended that he had been diagnosed with a sleep disorder, or had other sleep-related symptoms, separate and distinct from his service-connected narcolepsy. However, in the November 2020 JMPR, the parties found that the Board erred in denying the Veteran’s claim as it failed to adequately consider whether service connection for sleep disturbances prior to the effective date for the award of service connection for narcolepsy was warranted. In this regard, the parties noted that the Veteran was service-connected for narcolepsy as of July 19, 2018; however, he filed a claim to reopen a previously denied claim for service connection for sleep disturbances in February 2017 and a claim for an increased rating for his left knee disability with sleep disturbances in June 2017. Furthermore, the parties observed that the evidence indicated the presence of a sleep disorder prior to the award of service connection for narcolepsy. In this regard, the Board observes that an October 2016 VA treatment record reveals that the Veteran’s primary complaint appeared to be insomnia, which was likely the cause of his excessive daytime sleepiness, which made narcolepsy less likely. A June 2017 VA examination reflects a notation that the Veteran had been diagnosed with idiopathic hypersomnolence. In a December 2017 letter, the Veteran’s private physician, Dr. Y.D., noted that he had a diagnosis of hypersomnia, which was mainly related to his idiopathic disorder and/or possible narcolepsy, and related to his chronic knee pain. An August 2018 VA epilepsy examination report indicates diagnoses of narcolepsy and hypersomnia, and a September 2018 letter from Dr. Y.D. reflects reports of frequent episodes of idiopathic hypersomnia and/or narcolepsy. A December 2018 private narcolepsy Disability Benefits Questionnaire (DBQ) from Dr. Y.D. reflects diagnoses of narcolepsy and idiopathic hypersomnia, which result in excessive daytime sleepiness, sleep attacks, cataplexy, and sleep onset/sleep offset hallucinations. A May 2019 private epilepsy DBQ by Dr. Y.D. reveals diagnoses of absence/petit mal/atonic seizures and narcolepsy (idiopathic hypersomnia). A June 2020 VA epilepsy examination report notes a diagnosis of narcolepsy, but noted that a December 2016 multiple sleep latency test revealed mild hypersomnolence not consistent with a diagnosis of narcolepsy or idiopathic hypersomnia. In September 2020, Dr. Y.D. reported that the Veteran had been treated for his diagnosis of idiopathic hypersomnia/narcolepsy since December 2017, and a March 2021 VA narcolepsy examination report includes diagnoses of narcolepsy and hypersomnolence, which result in excessive daytime sleepiness and sleep attacks. Thus, based on the foregoing, it remains unclear whether the Veteran has a diagnosis of a disorder manifested by sleep disturbances that has been present at any time proximate to February 2017 or June 2017 claim, to include as separate and distinct from his service-connected narcolepsy as of July 19, 2018, and is related to his service-connected left knee disability. Consequently, the Board finds that a remand is necessary to obtain an addendum opinion addressing such inquiries. The matter is REMANDED for the following action: Forward the record, to include a copy of this Remand, to an appropriate VA clinician for a medical opinion addressing the nature and etiology of the Veteran’s claimed sleep disturbances. Following a review of the record, the examiner should address the below inquiries: (A) Identify all current disorders manifested by sleep disturbances that have been present at any time proximate to the Veteran’s February 2017 claim for service connection for sleep disturbances in February 2017 and/or his June 2017 claim for an increased rating for his left knee disability with sleep disturbances, to include narcolepsy prior to July 19, 2018, and/or hypersomnia. (B) For each diagnosed disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is caused or aggravated by the Veteran’s service-connected left knee disability. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.