Citation Nr: 1323175 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 08-25 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a disability manifested by insomnia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from March 2002 to March 2006. He was awarded the Combat Infantryman's Badge, in connection with his service in Iraq, among other decorations. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This matter was remanded in July 2010 and January 2013 for further development. In a June 2010 brief to the Board, the Veteran's representative raised the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). The issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT A disability manifested by insomnia is a result of the Veteran's marijuana abuse. CONCLUSION OF LAW The criteria for service connection for a disability manifested by insomnia have not been met. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(a), 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in September 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as records of all reported post-service treatment and adequate VA examination reports. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted (compensation paid) for disability resulting from an 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.A. §§ 1110; 38 C.F.R. § 3.303. No compensation will be paid; however, for disability that is the result of willful misconduct or the abuse of drugs or alcohol. Id.; 38 C.F.R. §§ 3.1(m), 3.301(a) (2012). Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (2012). In the Veteran's June 2006 claim, he reported that he had suffered from insomnia since August 2005. The personnel records reflect that the Veteran was deployed to Iraq from October 2004 to August 2005. The service treatment records reflect that the Veteran sought treatment in August 2005 for cellulitis of his right lower extremity. He voiced no additional complaints at that time. He was given information on post deployment issues including nightmares, flashbacks, irritability, solitary behavior, outbursts, and extreme vigilance. The Veteran denied these issues but verbalized that he would follow up with behavioral health if he noticed any such behaviors. In September 2005, the Veteran completed a post deployment health assessment in which he reported an experience so frightening, horrible, or upsetting that it (1) resulted in nightmares, (2) resulted in the Veteran being constantly on guard, watchful, or easily startled; and (3) caused the Veteran to try hard not to think about it and avoid situations that remind him of it. He denied feeling tired after sleeping. He denied feeling down, depressed, or hopeless. He admitted to sometimes having little interest or pleasure in doing things. When asked if he was interested in receiving help for stress, emotional, alcohol, or a family problem, he answered in the negative. In November 2005, the Veteran sought treatment for depressive/anxious symptoms following his deployment to Iraq. He stated that symptoms "increased after recent positive UA [urinalysis] and pending UCMJ [Uniform Code of Military Justice]." He reported experiencing sleep difficulties (with nightmares), irritability, nervousness, and some residual grief and feelings of helplessness. He stated that due to the significant emotional distress, he "turned to drugs" and then had a positive UA in September 2005. He admitted that he had a history of drug use and was almost chaptered in 2003; but he felt that had "turned around" before being deployed. He stated that he was doing well until the past 2-3 months since his med evac (for cellulitis). He stated that he was promoted while he was deployed and that he may lose his rank and be chaptered. He reported that his primary stressors are post-deployment adjustment and pending UCMJ. His mood was mildly depressed and anxious. Under Axis I, the examiner listed post combat stress symptoms and Occupational Problem. Under Axis IV, the examiner listed post-deployment adjustment and pending UCMJ. In November 2005, the Veteran also completed a Report of Medical History in which he reported panic attacks and nervousness when driving; nightmares and recurring events from deployment; bad dreams and tossing and turning for hours before falling asleep; and some depression about deployment and worry about events that were happening. The Veteran underwent a VA examination in October 2006. The examiner reviewed the Veteran's claims file in conjunction with the examination. The Veteran reported that when he was in high school, he played the "street game" which involved drugs. He had been arrested twice as a juvenile. The Veteran stated that he drank occasionally (but not heavily) prior to service and smoked marijuana. He denied the use of other street drugs. He had decided to enlist because, among other reasons, he "was dabbling in drugs." He felt as if he was "losing himself." He stated that during basic training, his wife gave birth to their first child. He was not allowed to leave to go see her, so he went out and got drunk and got caught. He stated that he was deployed to Iraq and promoted to Sergeant; but he was sent home after developing a leg infection that would not heal. The Veteran reported that once he returned home, he felt under increased stress at home. He stated that he could not tolerate stresses related to his wife and children. In Iraq all I had to worry about was staying alive." He began to smoke marijuana again as a result of this increased stress. He was caught, demoted, and discharged." The Veteran also described two stressful in-service events. One involved a suicide bomber and the other involved a U.S. vehicle being hit and the occupants being killed. The Veteran was upset that he was discharged. He became tearful during the interview and said "Why would they put me out like that? I asked them for help and they just said that there are lots of guys who come back with problems and they don't smoke weed." He and his wife lived with their two children in a rented house in a bad area of town. He drank socially and continued to smoke marijuana daily, to help his fall asleep. He stated that when he was working, he did not have trouble falling asleep because he was so tired. He stated that when he didn't have to work the next morning, he would frequently lie awake worrying about his health and his finances. He denied any sleep problems prior to service or during service. He complained of weight loss and of crying all the time because things were falling apart. Following the examination, the examiner diagnosed (1) cannabis-induced anxiety disorder, unrelated to military service, (2) cannabis dependence, and (3) a personality disorder, not otherwise specified. He stated that the Veteran's experience with his sleep was best accounted for by frequent cannabis use. He opined that is was likely that his nightly use of cannabis resulted in disruption of sleep. Therefore, the examiner found that the Veteran did not meet the diagnostic criteria for insomnia. The examiner found that the Veteran's long history of dysfunctional behaviors (substance abuse, legal problems) and his dramatic presentation at the interview supported a diagnosis of a personality disorder. Virtual VA records reflect that in December 2009, the Veteran underwent a critical care/surgical admission assessment for an unrelated disability. The report reflects that the Veteran was getting 8 hours of sleep and did not suffer from any sleep problems. Virtual VA records also reflect that in November 2010, the Veteran visited a VA social worker to discuss interpersonal issues he had been having with his spouse. The Veteran felt that he and his wife had grown apart since he returned from being deployed, and that he felt they were heading for divorce. He also felt as though he was "going crazy" from all the medical and family issues he was currently facing. Finally, Virtual VA records reflect that in November 2010, the Veteran underwent a Behavioral Health Initial Evaluation. The examiner noted that the OEF/OIF clinic referenced marital and family stress. The Veteran reported "feeling mentally tired, headaches, bad dreams, family stress". He denied any inpatient psychiatric admissions; but noted that was seen as an outpatient for a sleep study in Washington (state) soon after discharge. He denied any psychiatric outpatient treatment or ever attending rehabs. He denied current cannabis use, stating he last used 3 months ago. He reported that he drank "socially." He reported that he "was put out of the military for smoking marijuana." He admitted that he received 2 Article 15s for this behavior and ultimately received a general under honorable conditions (misconduct) discharge. Online documentation noted that the Veteran as arrested twice as a juvenile for selling drugs, which the Veteran did not report at the examination interview. The Veteran reported that he got an average of 5 hours of sleep per night. His energy level was "fatigued," which he thought was related to a testicular infection. The Veteran did not report symptoms consistent with a diagnosis of PTSD, mania or obsessive compulsive disorder. The examiner diagnosed the Veteran with (1) r/o anxiety disorder, not otherwise specified, (2) cannabis abuse, and (3) r/o alcohol abuse. Under Axis IV, the examiner noted "stress with family." There was no mention of in-service stressors, using marijuana as a means to self medicate, or any disability manifested by insomnia. The examiner noted that the Veteran minimized greatly the role of his substance misuse. She noted that he did not feel his cannabis or alcohol use was problematic, despite being discharged from the military for cannabis use and having several disorderly conduct charges related to drinking. The Veteran underwent another VA examination in February 2011. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported that in high school, he had been suspended 4 or 5 times for fighting. He also stated that he had been arrested once for possession of crack cocaine. He reported several in-service disciplinary actions. He reported that he had smoked marijuana because he didn't want to go to the infantry. This resulted in "a dirty urine in February 2004" (prior to deployment). He reported another Article 15 and losing rank from E3 to E1 as well as two months at half pay. He reported that after returning from Iraq, he received another Article 15 for use of marijuana. He was discharged with a loss of rank from E5 to E4. The examiner noted that the Veteran's DD 214 stated that reason for separation was "Misconduct (serious offense)." The Veteran reported three in-service stressors. They all appeared to involve vehicles being hit by IEDs. It does not appear that he witnessed the third event; but that he had to help "clean up all the mess." The Veteran reported that he has been arrested for 4 disorderly conducts since service. He stated that he was married in 2003; but he felt emotionally separated from his wife. The Veteran reported that he first began having psychological problems after the first in-service stressor (when a sergeant was hurt in an IED attack). He began having dreams about the sergeant. He also reported dreams about the other two stressors. The Veteran reported seeking psychiatric treatment during service; but upon further inquiry, he reported that he was actually part of a sleep study group. He reported no further treatment until November 2010. The Veteran reported that he first began smoking marijuana at age 16 and that he used it regularly almost immediately. He was referred to the St. Francis drug and alcohol program, and he completed it prior to service. The Veteran reported that he had insomnia. He stated that he had to wear a mouthpiece because he ground his teeth and awoke with headaches. He also mentioned that when he returned from Iraq, his children had irritated him. He also noted that he was angry that people attributed his problems to marijuana smoking, rather than acknowledge that something was wrong with him. Upon examination, the Veteran reported that he was "pretty happy most of the time." He also stated that he got 4-6 hours of sleep per night, with no difficulty falling asleep and no sleep continuity disturbance. He did not report any nightmares until questioned about them. When questioned, he mentioned having dreams about the in-service stressors 3-4 times per week. However, he did not characterize them as nightmares, and they did not wake him up. He denied somatic complaints; but did report feeling fatigued. He stated that he drank a fifth of alcohol on Fridays and Saturdays, and that he smoked marijuana daily. He did socialize (going to the movies with family and going to bars with friends). The examiner diagnosed (1) cannabis dependence, active, unrelated to military service, (2) alcohol dependence, active, binge drinking, unrelated to military service, and (3) cannabis-induced mood disorder unrelated to military service. He noted that the results of his examination are consistent with those of the October 2006 VA examiner. He noted that the Veteran reported a history of occasional nightmares in the past; but that he did not report any nightmares at the time of the examination. Moreover, he did not report any consistent, intrusive recollections. The examiner found no evidence of hypervigilance, hyperalertness, or hyperarousal. The Veteran showed no vocational impairment since his discharge from service inasmuch as he was fully employed. The examiner found that almost all of the Veteran's reported difficulties and problems were most likely to be traced to his ongoing drug and alcohol use. He noted that alcohol and drug abuse increase sleep disruption, irritability, and negatively impact mood and stability. He opined that the Veteran's problems were generally attributable to alcohol and drug dependence, both of which began prior to service and were not aggravated by military service. Moreover, he opined that the Veteran's participation in combat appeared to have no relation to his current symptomatology, most of which appeared to be related to family discord. The Board remanded the claim in January 2013 so that the February 2011 examiner could submit an addendum in which he acknowledged the November 2005 mental health examination report, the November 2005 Report of Medical History, and the contention of the Veteran that he had "turned his life around" prior to his deployment to Iraq. The examiner submitted a January 2013 addendum. He noted that contrary to the Veteran's contention, there was no evidence that he made any changes in substance use; and that his substance use in 2005 was entirely consistent with his pre-military and pre-deployment history. The examiner also noted that his reported depressive symptoms were specifically "increased after his positive UA and pending UCMJ." He stated that the symptoms reported in the November 2005 psychiatric examination were entirely consistent with substance abuse. He also found it important to note that the Veteran was given a diagnosis of "post combat stress symptoms," (which was not an Axis I diagnosis), and an "occupational problem" (which was a V code). The examiner also pointed to the August 2005 case management report in which the Veteran denied nightmares, flashbacks, irritability, solitary behavior, outbursts, and extreme vigilance. The examiner found that this constitutes clear evidence that the Veteran's later symptoms coincided with his resumption of substance abuse, and not his deployment experiences. He noted that service records clearly indicate that the Veteran's mood, anxiety, and sleep symptoms did not follow his deployment (as noted in August 2005), but instead followed his substance abuse and not documented until November 2005 (well after disciplinary actions had been initiated). The examiner once again found that the Veteran's reported insomnia and sleep disturbance were directly related to substance abuse, both while in service and at the time of the examination. He found that there is no evidence of an independent or underlying sleep disorder that is unrelated to substance abuse. He also found that the Veteran's drug and alcohol abuse could in no way be construed as an attempt to self medicate, or in any way related to combat trauma or deployment experiences. He noted that the evidence of record establishes a clear pattern of substance abuse/dependence prior to service, during service before deployment, and after deployment, definitely ruling out any relationship between reported traumatic experiences and onset or exacerbation of substance dependence. Finally, he found that the Veteran's reported sleep disorder symptoms were in no way indicative of any underlying psychiatric disorder, but were specifically symptoms of ongoing substance dependence. Analysis The Veteran has been noted during the course of the current appeal to have insomnia. The medical or mental health opinions have all been to the effect that the insomnia is related to marijuana abuse. As noted above, service connection may not be granted for disability resulting from the abuse of drugs. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.1(m), 3.301(a) (2012). The Veteran has acknowledged that he has smoked marijuana since he was 16 years old, and that he was arrested for possession of drugs. Additionally, although the Veteran began service in March 2002, he attempted to enter the service even earlier. However, he tested positive for marijuana at an April 2001 examination. In May 2001, the Chief Medical Officer informed the Veteran that he was temporarily disqualified for military service as a result of the examination. He recommended that the Veteran seek medical advice concerning marijuana use. At the Veteran's February 2011 examination he stated that he was treated at St. Francis and that he completed the alcohol and drug abuse program (he has not authorized VA to obtain records of this treatment). The Veteran contends that his subsequent drug use was a means of self medicating after witnessing several in-service stressors while deployed in Iraq. However, this contention is not supported by the evidence. The Veteran, at his February 2011 VA examination admitted to several disciplinary actions that occurred prior to being deployed. The first involved getting an Article 15 for disrespecting an NCO. He also reported he was caught smoking marijuana in February 2004 (prior to deployment) because he didn't want to go to the infantry. He reported another Article 15 and losing rank from E3 to E1 as well as two months at half pay. This evidence contradicts the Veteran's contentions that he had turned his life around. In regards to the contention that the Veteran used marijuana to self medicate, the Board has already noted that he admitted to using marijuana during service but prior to being deployed to Iraq. Additionally, when the Veteran returned from deployment in August 2005, he voiced no medical issues aside from the cellulitis in his right lower extremity. He denied post deployment emotional issues including nightmares, flashbacks, irritability, solitary behavior, outbursts, and extreme vigilance. It was not until November 2005 that he reported bad dreams, tossing and turning, etc. Moreover, he admitted that he had used marijuana in September 2005. Consequently, the Veteran's symptoms did not appear upon returning from deployment (in August 2005). They arose after using marijuana (in September 2005). Additionally, at his October 2006 VA examination, he reported that he began to smoke marijuana as a result of increased stress at home. The increased stress consisted of living with his wife and kids who were always making noise. He stated that "In Iraq all I had to worry about was staying alive." Later in the examination, the Veteran spontaneously described two memorable in-service stressors. The Veteran did not attribute his marijuana smoking to these stressors, nor did he state that he smoked marijuana to self-medicate. Finally, the Veteran has undergone two psychiatric examinations and both examiners have opined (in no uncertain terms) that the Veteran's cannabis and alcohol abuse are unrelated to military service. While the Board acknowledges that the October 2006 examiner's report did not include a thorough rationale for his opinion, the February 2011 examiner has provided a thorough rationale. The rationale was fully supported by the evidence and is afforded great weight, especially when set against the Veteran's contention that he turned his life around (which is not supported by the record, but is in fact directly contradicted by the record and by the Veteran's own statements at his February 2011 examination). The most probative evidence weighs in favor of a finding that the current insomnia or sleep disturbance is due to the abuse of drugs. Service connection is therefore, legally precluded. The Board finds that a preponderance of the evidence thus weighs against the claim. As the preponderance of the evidence is against this claim, reasonable doubt does not arise, and the claim for service connection must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to service connection for a disability manifested by insomnia is denied. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs