Citation Nr: 1333788 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 11-24 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for chronic insomnia. 2. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected chronic insomnia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to January 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Veteran appeared and provided testimony at a Board hearing before the undersigned acting Veterans Law Judge (VLJ). The Board notes that in his August 2010 claim, the Veteran claimed entitlement to service connection for paradoxical insomnia, which he amended in a December 2010 after his diagnosis was changed to chronic insomnia. Based on evidence submitted by the Veteran, showing that he had been diagnosed with generalized anxiety disorder (GAD) that was possibly related to his insomnia, the RO recharacterized the Veteran's claim as one for entitlement to service connection for any mental condition (claimed as chronic insomnia), which the RO denied in the April 2011 rating decision. However, the Board finds that the Veteran's chronic insomnia and his acquired psychiatric disability, to include GAD, are separate disabilities, either of which may warrant entitlement to service connection on their own. As such, the Board has recharacterized the issues on appeal accordingly. Additionally, of record is a statement signed by the Veteran in June 2012, but received by the Board in August 2012, shortly after his Board hearing, which indicates the Veteran's desire to withdraw his claim on appeal. However, as the Veteran did not discuss this desire at his Board hearing and a review of the hearing transcript clearly indicates the Veteran's intent to continue his appeal, the Board finds that the claim is not withdrawn, and the appeal will continue. The Board notes that it has reviewed not only the Veteran's physical claims file, but also the "Virtual VA" system to ensure a complete assessment of the evidence relevant to the present appeal. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal The entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected chronic insomnia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's chronic insomnia had its onset in service and continued since. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for chronic insomnia have been met. 38 U.S.C.A. §§1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In view of the Board's favorable decision on this claim, as it relates to this issue, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Analysis The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 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 disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Veteran claims he is entitled to service connection for chronic insomnia as such disability was incurred in active service and continued since. Specifically, he contends that while stationed aboard the USS Los Alamos he developed trouble sleeping due to the conditions aboard the ship, and later was diagnosed with chronic insomnia as a result. The Board notes that a review of the Veteran's service treatment records (STRs) are silent for any complaints or findings related to sleep impairment or insomnia. On his December 1980 report of medical history, associated with his separation examination, the Veteran specifically denied frequent trouble sleeping. In support of his claim, the Veteran has submitted a letter that he had written to his mother in 1978, while stationed aboard the USS Los Alamos. In this letter, the Veteran had told his mother that he was having trouble sleeping. The letter is accompanied by a postmarked envelope, dated June 28, 1978, and as such, the Board does not question its authenticity. Additionally, the Veteran's mother submitted a statement in support of the Veteran's claim in June 2011, in which she stated that as a child and teenager, the Veteran had no problems sleeping, but that while on the USS Los Alamos his sleep patterns changed. Also of record are private treatment records which show that the Veteran has undergone multiple sleep studies in the hopes of determining the cause of his sleep impairment. In June 1998, the Veteran was seen by Dr. K.M., when he reported that he was unable to get enough sleep at night. He reported that this problem had begun while he was in the Navy, and that his sleep pattern had not changed much since that time. Dr. K.M. assessed insomnia and ordered a full night sleep study to document the nature to his sleep architecture and breathing pattern to rule out any diagnosis of restless leg syndrome or sleep apnea. A follow-up treatment record in September 1998 indicates that the Veteran's sleep study was normal, Dr. K.M. assessed psychophysiological insomnia and the Veteran was prescribed Ambien. In March 2010, the Veteran sought a second opinion for his sleep impairment and was seen by a Dr. K.G.S., to whom he reported that while on active service his work resulted in frequent sleep disruptions. The Veteran was seen for another sleep study in March 2010 and Dr. K.G.S., who after reviewing the results of the sleep study, assigned the Veteran a diagnosis of paradoxical insomnia. In October 2010, the Veteran was seen at Johns Hopkins for evaluation and management of his insomnia. The Veteran reported that during active service he worried about staying awake when he was on night or day watch, and he began to keep himself awake repeatedly. After examination, the Veteran was given a diagnosis of chronic insomnia In various lay statements, including the testimony at his August 2012 Board hearing, the Veteran has asserted that the sleeping conditions aboard the USS Los Alamos, caused his current chronic insomnia. Specifically, he has stated that on average he got three to four hours of sleep a night due to the fact that there was constant noise that prevented him from being able to relax and fall asleep and that his sleeping quarters were directly over the boilers, which kept the average constant temperature at roughly 100 degrees. The Veteran also submitted several lay statements from former service members who had been stationed on the USS Los Alamos, who corroborated the Veteran's statements with regard to the poor sleeping conditions aboard the ship. After review of the above evidence, the Board will resolve doubt in the Veteran's favor as to whether or not his chronic insomnia had its onset in service and continued since. Although the Veteran's STRs do not demonstrate treatment or findings of insomnia during active service, the Board finds that the Veteran's statements/testimony that his insomnia began during service are supported by the record, specifically the June 1978 letter from the Veteran to his mother that notes he was experiencing trouble sleeping. Further, while there is no indication that the Veteran sought treatment for his insomnia until June 1998, 17 years following separation from active service, at that time he reported that his insomnia began during his active service, and these reports remained consistent throughout the entirety of his treatment. Additionally, although the Veteran did not seek treatment until 17 years after separation from active service, this was still more than 12 years before he filed his claim for service connection, and the Board finds this significant and weighs in the Veteran's favor. The Board notes that there can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, ordering a VA examination; however, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993); Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Therefore, entitlement to service connection for chronic insomnia is granted. ORDER Entitlement to service connection for chronic insomnia is granted. REMAND The Board finds that additional development is needed before the Veteran's remaining claim on appeal is decided. At the outset, the Board notes that the Veteran's claim was previously adjudicated by the RO only on a direct basis. However, the evidence of record suggests that service connection may be warranted on a secondary basis, and as such the Veteran should be provided all required notice in response to the claim for entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected chronic insomnia. Private treatment notes of record indicate that the Veteran sought psychiatric treatment in May 2010, at which time he presented with sleep complaints. He reported that he had previously seen a counselor in January 2010 who was a licensed social worker, after suffering from a panic attack. He had been prescribed Zoloft and Effexor for anxiety. A June 2010 private psychiatric treatment record notes that he was assigned a diagnosis of GAD. The record indicates that the Veteran continued to receive relatively regularly psychiatric treatment through November 2010, at which time he reported that he had been suffering from sleep impairment for 30 years. At his August 2012 Board hearing, the Veteran testified that he believed his GAD was caused by his service-connected chronic insomnia. He testified that his 30 years of chronic insomnia led to a severe anxiety attack in January 2010 and his diagnosis of GAD, which requires psychiatric treatment and medication. The Board notes that, in McLendon v. Nicholson, 20 Vet. App. 79 (2006); the Court of Appeals for Veterans Claims (Court) held that VA must provide a medical examination in connection with a service connection claim when the record (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability, but (D) does not contain sufficient evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). See McLendon, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Based on the evidence of record indicating that the Veteran complained to his psychiatric treatment provider on multiple occasions of sleep impairment and the Veteran's testimony at his Board hearing that his insomnia led to his diagnosis of GAD, the Board finds that the requirements of McLendon are met. Therefore, a VA examination and opinion are needed to determine whether the Veteran's current acquired psychiatric disability, to include GAD, is related to his active service, to include his service-connected chronic insomnia. Additionally, the Board notes that at his August 2012 Board hearing, the Veteran indicated that he only receives private treatment for his psychiatric disability. The most recent private psychiatric treatment notes of record are from November 2010 and the Board finds that current treatment notes may contain information pertinent to the Veteran's claim, and efforts should be made to obtain and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should provide all required notice in response to the claim for entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected chronic insomnia. 2. The RO or AMC should ask the Veteran to identify all providers of evaluation or treatment he has received for his acquired psychiatric disability since November 2010, and to provide releases for VA to obtain records of any such identified evaluations and treatment. The RO should attempt to secure for the record copies of the complete clinical records from all providers identified. If any identified private provider does not respond to the RO's or AMC's request for records, the Veteran must be so advised, and reminded that ultimately it is his responsibility to ensure that private medical records are received. 3. Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to obtain an opinion as to the nature and etiology of any currently diagnosed psychiatric disability. The claims file must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. After examination and review of the claims file, the examiner should opine as to whether it is a) At least as likely as not (a 50 percent or better probability) that any diagnosed psychiatric disability is etiologically related to his active service; b) At least as likely as not (a 50 percent or better probability) that any diagnosed psychiatric disability was caused by his service-connected chronic insomnia. c) At least as likely as not (a 50 percent or better probability) that any diagnosed psychiatric disability was chronically worsened by his service-connected chronic insomnia. The complete rationale for all opinions must be expressed. 4. The RO or the AMC should undertake any other development it determines to be warranted. 5. The RO or the AMC should ensure that all development sought is completed, and then re-adjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs