Citation Nr: 1629832 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 08-27 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a sleep disability, to include sleep disturbance, insomnia, and obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans (DAV) WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from July 1965 to August 1966 and from November 1969 to December 1972. He served in the Republic of Vietnam and was awarded, in part, the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO, in part, denied service connection for sleep apnea. The Veteran appealed this rating action to the Board. The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (hereinafter "the Court") held that an initial claim of entitlement service connection for PTSD should also be read as including other psychiatric disorder diagnoses reasonably raised by the symptoms described and all information obtained in support of the claim. Thus, the Board has recharacterized the claim to encompass all diagnosed sleep disabilities of record in accordance with Clemons. In April 2015, the Veteran testified before the undersigned at a video conference hearing conducted via the RO in Nashville, Tennessee. A copy of the hearing transcript has been uploaded to the Veteran's Veterans Benefits Management System (VBMS) electronic record. During the hearing, the Veteran's representative noted that the Veteran had not, as previously indicated by the Board in its November 2013 remand, withdrawn the issue of entitlement to service connection for sleep apnea, and that this issue had remained in appellate status. (Transcript (T.) at page (pg.) 3)). In addition, the Veteran testified that his sleep apnea was, in part, secondary to stress associated with his PTSD. Thus, the Board has recharacterized the claim of entitlement to service connection for a sleep disability to accurately reflect the Veteran's testimony regarding secondary service connection. (T. at pages (pgs.) 5, 25). Also developed for appellate consideration were the issues of entitlement to service connection for erectile dysfunction (ED), to include as secondary to PTSD, and entitlement to an increased rating in excess of 10 percent for bilateral hearing loss. By a February 2011 rating action, the RO granted service connection for ED as secondary to the service-connected Parkinson's Disease; an initial noncompensable evaluation was assigned, effective October 18, 2010--the date service connection was shown to be warranted by the medical evidence of record. This represents a complete grant of the benefit originally sought. Thus, the Board does not have jurisdiction over this issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (Board cannot possess jurisdiction over an issue where a rating decision constituted a full award of the benefit sought on appeal). Regarding the claim for an increased disability rating in excess of 10 percent for bilateral hearing loss, the Veteran maintained, in part, in a July 2015 statement to VA, that he was not seeking an increased rating for this disability. (See Veteran's facsimile to VA, received on July 14, 2015 and labeled as "Correspondence."). In view of the foregoing, the only issue remaining for appellate consideration is the one listed on the title page. In October 2015, the Board, in part, remanded the issue currently on appeal to the Agency of Original Jurisdiction (AOJ) for further development. The Board also remanded the issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). The Board noted that despite its current (then) award of an initial 100 percent rating for the Veteran's PTSD for the entire appeal period, the claim of entitlement to TDIU had remained on appeal because it had not been raised only in the context of the Veteran's PTSD claim, but rather in the form of an allegation by the Veteran that all of his service-connected disabilities had rendered him unemployable. Thus, the Board found that its assignment of a 100 percent schedular evaluation for the PTSD had not rendered the TDIU claim moot. (See Board's October 2015 opinion, citing Bradley v. Peake, 22 Vet. App. 280 (2008)). As noted by the Board in October 2015, the Court held that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC ) under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)). Thus, the Board determined in October 2015, that, on remand, the Agency of Original Jurisdiction (AOJ) should reconsider the issue of entitlement to TDIU. Subsequently in a November 2015 rating decision, the RO granted special monthly compensation (SMC ) based on the housebound criteria effective, October 28, 2010. Given that the Veteran has been granted SMC based on the housebound rate, any express or inferred TDIU claim continues to be rendered moot. Thus, the only issue remaining for appellate consideration is the one listed on the title page. FINDING OF FACT The Veteran has a sleep disability manifested by sleep disturbance and insomnia that is aggravated by his PTSD. CONCLUSION OF LAW The criteria for a sleep disability manifested by sleep disturbance and insomnia as secondary to (aggravated by) the service-connected PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for sleep apnea. He contends, in part, that his sleep disability is secondary to stress associated with his service-connected PTSD. (T. at pgs. 5, 25). The Board finds that the evidence supports an award of service connection for sleep apnea as secondary to the service-connected PTSD. There is one (1) VA opinion that is supportive of the secondary service connection theory of the claim. In a March 2016 opinion, which was provided after a physical examination of the Veteran and review of the record, a VA physician concluded, in part, that sleep apnea was a physiological obstructive condition and that it was less likely for an obstructive condition to be aggravated by a psychological condition. The VA physician then opinion that it was likely that the Veteran sleep disturbance and insomnia were aggravated by his PTSD. (See March 2016 VA opinion). This opinion is supportive of the claim and is uncontroverted. Thus, as there is no other evidence in the record that weighs against the above-cited VA opinion, the Board will grant secondary service connection for a sleep disability manifested by sleep disturbance and insomnia as secondary to service-connected PTSD. Further, as the claim for a sleep disability manifested by insomnia and sleep disturbance is being granted, the Board finds that there would be no useful purpose in addressing the theory of direct service connection. ORDER Service connection for a sleep disability manifested by sleep disturbance and insomnia as secondary to PTSD is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs