Citation Nr: 1318124 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-06 112 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for insomnia, to include as secondary to his service-connected pseudofolliculitis barbae. 2. Entitlement to service connection for headaches. 3. Entitlement to an increased evaluation for pseudofolliculitis barbae, currently evaluated as ten percent disabling. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION In an administrative decision dated September 1979, VA determined that the Veteran's service from February 1975 to February 13, 1977 was honorable, but his service from February 14, 1977 to June 25, 1979 was under other than honorable conditions, which bars him from receiving VA monetary benefits for any disability that either began during or was otherwise caused by that later period of service. See 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.12 (2012). Consequently, the Board will not consider his period of service from February 14, 1977 to June 25, 1979 with respect to in-service incurrence of his claimed disabilities. This appeal initially came to the Board of Veterans' Appeals (Board) from a July 2008 rating decision. In April 2011, the Board denied the Veteran's claim. The Veteran appealed several of the issues decided in that decision to the Court of Appeals for Veterans Claims (Court). In November 2012, the Court partially vacated the Board decision and remanded the Veteran's claim for action consistent with a memorandum decision. In the April 2011 decision, the Board recognized that the issue of service connection for depression and anxiety, to include as secondary to service-connected pseudofolliculitis barbae, had been raised by the record, but not adjudicated by the Agency of Original Jurisdiction (AOJ), as such the Board referred it to the AOJ for appropriate action. Since that time, it is unclear whether any action has been taken on that issue, so it is once again referred. It is also noted that in the September 2010 statement, the Veteran appeared to be seeking service connection for a urological disability (but this is not clear), and this issue is also referred. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the April 2011 decision, the Board concluded that the evidence of record did not establish that the Veteran had a disability manifested by insomnia. The Court pointed out that the Veteran had asserted that he suffered from difficulty sleeping which was a condition that the Court suggested was capable of lay observation. In this regard, the Court noted that the representative of the Secretary conceded that the Board's determination "fails to account for his post service assertions that he suffers from difficulty sleeping." This is an curious consideration/concession, as in any case involving insomnia a claimant will, by definition, be contending that he is having problems sleeping (the Board cannot conceive of a situation in which a Veteran who files a claim for insomnia would not be claiming that he suffers from difficulty sleeping or that the Board would not assume so). Even at this time, there is no diagnosis of insomnia in this Veteran. As a result, the Court/representative of the Secretary has placed the Board in the peculiar position of having to disprove that the Veteran has the disability at issue, notwithstanding the Court's findings in Brammer v. Derwinski, 3 Vet. App. 223 225 (1992), Rabideau v. Derwinski, 2 Vet. App. 141 (1992) and, most importantly, McLendon v. Nicholson, 20 Vet. App. 79 (2006) and the fact that the Veteran has never been diagnosed with insomnia. A conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters v. Shinseki, 601 F.3d 1274, 1278-1279 (Fed. Cir. 2010). Here, as the only evidence that the Veteran's claimed disability is related to military service is the conclusory generalized lay statements of the Veteran, which are unsupported by even speculative medical evidence even regarding the existence of the disability. The Board acknowledges that a person might be capable of reporting difficulty sleeping as such a symptom is readily observable. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Simply stated, the Veteran is capable of informing the Board that he had trouble sleeping on an given day or days. However, the Board believes that assessing whether a symptom, such as (for example) difficulty sleeping, or pain, rises to the level of severity or joins with other symptoms to constitute a clinically recognized disability (such as "insomnia") is a medically complex question that is beyond the Veteran's training and experience. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is simply not medically qualified to diagnose himself with a medical condition following his recital of his symptoms and then find that it is the result of service more than 30 years ago. In March 2006, the Veteran filed a claim seeking service connection for insomnia, asserting that it "happen[ed] in service". In his substantive appeal in December 2008, the Veteran acknowledged that his service treatment records showed that he was treated for trouble sleeping on November 14, 1977 (during his other than honorable period of service), but insisted that he had experienced difficulty sleeping before then and had experienced difficulty sleeping ever since service, leading to the prescription of sleeping medication. In September 2010, the Veteran asserted that his service treatment records showed that on November 14, 1977 he was having difficulty sleeping, which he asserted was tantamount to insomnia. With regard to the Veteran's claim for service connection for headaches, in September 2010 he asserted that his service treatment records showed that he was experiencing occasional headaches on November 14, 1977. He speculated that the headaches were of a migraine nature and he asserted that they had continued ever since that time. Service treatment records do show that the Veteran sought treatment for a headache of two days duration in May 1975 and was diagnosed with a tension headache. It is noted that the Court did not specifically require the Board to obtain a medical opinion, only instructing the Board to address the credibility of the Veteran's statements that he had suffered from headaches continuously after service. However, given the in-service complaint, and the rational used by the Court in the insomnia situation, the Board concludes that an examination is desirable within the limited context of this case. The Board is unclear as to how, using the Court's rational in the insomnia mater, it would distinguish between the headache mater and the insomnia issue regarding the issue of obtaining an examination. In March 2013, the Veteran indicated that he continued to see a psychiatrist, Dr. N., who he alleged had related many of his emotional problems to his pseudofolliculitis barbae and insomnia. He requested that records from this treatment be obtained, as well as treatment from the VA hospital and "elsewhere". Efforts should be made to obtain the treatment records. In this regard, the Veteran should submit these records himself to avoid delaying his own case. In a July 2010 rating decision, it was determined that a clear and unmistakable error (CUE) had been made and a 10 percent rating was assigned for pseudofolliculitis barbae effective October 18, 1979. In September 2010, the Veteran stated that he disagreed with the 10 percent rating that had been assigned and felt a 30 percent rating should have gone back to 1979. This statement constitutes a notice of disagreement with the rating that was assigned. See 38 C.F.R. §§ 20.201, 20.302(a). Moreover, because it is still pending, it is proper to remand this claim to provide a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. The RO should consider the issue of a rating in excess of 10 percent for pseudofolliculitis barbae as of October 1979; if the benefits sought cannot be granted, the RO should issue a statement of the case in accordance with applicable law and regulations. The Veteran should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the claim should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 2. Contact the Veteran and request that he identify and authorize VA to obtain all private treatment he has received for either headaches or insomnia/sleeping problems. The Veteran should be specifically asked to identify what he was referring to in his March 2013 statement when he stated that he had received treatment "elsewhere". Efforts should be made to obtain any treatment records identified by the Veteran. The Veteran should submit these records himself in order to expedite his case and avoid delay or indicate that the VA has all penitent records. 3. Obtain VA treatment records to the extent any are available (contact with the Veteran may be needed, but is not required). 4. Schedule the Veteran for a VA examination to assess his allegation that he has insomnia. The Veteran's claims file should be provided and a complete rationale should be provided for any opinion expressed. The examiner should determine whether the Veteran has a disability manifested by insomnia, and if so should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that such a disability either began during or was otherwise caused by the Veteran's first period of military service (from February 1975 to February 13, 1977). Indications of exaggeration should be noted in the record (if any). If (and only if) insomnia is diagnosed, the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater) that such a disability is either secondary to, or aggravated by the Veteran's service connected pseudofolliculitis barbae. "Aggravated by" means that the underlying disability was made permanently worse by the service connected disability. In providing the requested opinion, the examiner should specifically address the relevance, if any, of: a) the absence of any complaints of, or treatment for, sleeping problems during the Veteran's "good" period of service (that is the period from February 1975 to February 13, 1977, symptoms experienced during any subsequent period of service are not to be considered to have been experienced "in-service"); b) the complaint of frequent trouble sleeping in November 1977, which the medical officer noted was the result of the Veteran worrying about jobs; c) the denial of any sleep abnormalities or insomnia in June 1979; and d) the lack of any complaints of, or treatment for, any sleeping problems for a number of years after service. 4. Schedule the Veteran for a VA examination to assess his allegation that he has a headache disorder as a result of his military service. The Veteran's claims file should be provided and a complete rationale should be provided for any opinion expressed. Indications of exaggeration should be noted in the record (if any). The examiner should determine whether the Veteran has a headache disability, and if so should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that such a disability either began during or was otherwise caused by the Veteran's first period of military service (from February 1975 to February 13, 1977; symptoms experienced during any subsequent period of service are not to be considered to have been experienced "in-service"). The examiner should specifically address the relevance, if any, of the May 1975 treatment record which shows the Veteran receiving treatment for tension headaches. 5. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).