Citation Nr: 1625041 Decision Date: 06/22/16 Archive Date: 07/11/16 DOCKET NO. 12-34 251 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to service connection for chronic insomnia. REPRESENTATION Appellant represented by: Attorney Taniel Anderson ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1979 to August 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Baltimore, Maryland RO. At the Veteran's request a hearing in this matter was scheduled before the undersigned in Washington D.C.in April 2016. The Veteran did not report for the hearing; instead her attorney appeared (by himself) and requested that the hearing be held for the sole purpose of his presenting oral argument. He was advised that that it is against Board general policy to grant hearings solely for such purpose (and that perhaps an exception might be in extraordinary circumstances where something would be presented that could not be reduced to writing. The attorney indicated that he was advised (apparently by an unidentified person with the Board) that such hearing would be held. As his assertion could not be confirmed, the undersigned decided to allow the hearing (for presentation of oral argument) to proceed; a transcript is in the record. FINDING OF FACT Chronic insomnia is not shown to have manifested in, and is not shown to be related to, the Veteran's service. CONCLUSION OF LAW Service connection for chronic insomnia is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duty to notify was satisfied by an April 2010 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Furthermore, during the April 2016 Board oral argument, the undersigned advised the Veteran's attorney of what is still needed to substantiate the claim (evidence that the Veteran's insomnia is related to her service), and suggested the types of evidence that could be submitted; the attorney's statements at the hearing reflect that he is aware of what is needed to substantiate this claim. The Board notes again that the appellant was not present, and that the attorney is presumed to be familiar with governing law. The Veteran's service treatment records (STRs) are associated with the record, and pertinent postservice treatment records have been secured. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) Whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence that an event, injury, or disease occurred in service, or that certain diseases were manifested during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor listed, the U.S. Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, even the low threshold standard of McLendon is not met, as there is no evidence of a related disease or injury in service, and no evidence that a current chronic insomnia may be related to the Veteran's active service. Therefore, a VA examination to secure a nexus opinion in the matter is not necessary. The Veteran and her attorney have not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. The Veteran contends that she has chronic insomnia that was first manifested in service (when she was 19 years old) and has persisted. Her STRs are silent for complaints, findings, treatment or diagnosis of insomnia. The record does not include a report of a service separation examination. Postservice treatment records show that the Veteran was first seen for insomnia in 2008. On October 2008 VA treatment, she reported having insomnia since she was 19. She could not relate the insomnia to any particular event, but reported that it started while she was in service and had gotten worse in the previous 10 years. On November 2008 VA treatment, the assessment was chronic insomnia. On a December 2008 sleep study, the Veteran reported a more than 20 year history of nightly sleep problems, with trouble falling asleep and waking up multiple times; the diagnosis was insomnia. On March 2009 VA treatment, the assessment was chronic insomnia of unclear etiology; it was noted that there was some stress and the question was raised of bipolar disorder. On May 2009 VA treatment, the Veteran reported having severe insomnia; she was recently started on three medications which appeared to help. On July 2009 VA treatment, she was noted to be taking Ambien, Restoril, and Seroquel. Later treatment records include assessments of insomnia treated with medication. In a July 2012 statement, a treating VA neurologist noted that the Veteran was being followed in a sleep clinic; that she had had severe insomnia for years; and that mild sleep apnea was diagnosed in 2011. The provider noted that the Veteran could not tolerate using a CPAP at home as it worsened her insomnia. Home oxygen was ordered for her based on sleep studies. In July 2012, the Veteran submitted notes from a May 2009 study by a professor of psychiatry, entitled "Brief Behavioral Treatment of Insomnia in Military Veterans". The stated objectives of the study were to recognize the clinical relevance of insomnia in military veterans with and without posttraumatic stress disorder (PTSD) or other post-deployment adjustment difficulties; to implement valid and reliable strategies to evaluate insomnia in military veterans; and to describe steps to implement brief behavioral treatments for insomnia in military veterans. The military population addressed in the study included Vietnam veterans, Gulf War veterans, veterans of other combat/deployment theaters, and veterans of Operation Enduring Freedom/Operation Iraqi Freedom; the prevalence of insomnia was noted in the military population cited and compared to civilian population estimates. In April 2016 recorded oral argument (presented instead of a hearing) the Veteran's attorney asserted that the Veteran's diagnosed chronic insomnia began in service. He cited to reports (already in the record) of a Department of Defense study indicating that insomnia is much more prevalent in veterans who served in combat/were deployed in combat zones than in the general population and that it is causally connected to their service. The undersigned observed that the Veteran served in peacetime only (and was not deployed to an area of hostilities). The attorney argued that the studies should be generally applicable to all veterans, including those who served in peacetime due to interrupted sleep cycles that are prevalent by the very nature of military service. Regarding the assertion that the Veteran has had chronic insomnia since service, the undersigned asked the attorney to identify supporting evidence in the record. The attorney indicated that the Veteran's sworn (emphasis added) statements serve to corroborate her reports of constant chronic insomnia since service. The undersigned identified (for the attorney) caselaw suggesting that self-serving statements may be somewhat lacking in probative value, and advised that corroborating evidence may be needed to support a theory of entitlement alleging onset of the disability in service and continuity since. Under 38 C.F.R. § 3.303(a) service connection means that the "facts, shown by evidence [emphasis added], establish that a particular injury or disease resulting in disability was incurred coincident with service". Further, § 3.303(a) provides that "this may be accomplished by affirmatively showing [emphasis added] inception or aggravation during service or through the application of statutory presumptions. Regarding an affirmative showing of inception or aggravated in service, inasmuch as chronic insomnia is not shown to have been diagnosed, noted, or reported in service, there is no evidence of inception in service. In oral argument before the undersigned, the Veteran's attorney presented a continuity of symptomatology theory of entitlement, indicating that the Veteran's sworn statements of continuity support such theory. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) the United States Court of Appeals for the Federal Circuit held specifically that the continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases. Because chronic insomnia is not an enumerated chronic disease listed in 38 C.F.R. § 3.309(a), that theory of entitlement does not apply in the instant case. [The Board also notes incidentally in response to this argument that does not reflect consideration of the cited governing caselaw, that while statements by the Veteran and history she has provided in the course of treatment since 2008 report continuity of symptoms since service (and onset therein), a review of the record did not find a "sworn statement"; the Veteran did not appear at the hearing, and has not presented such statement in writing. Notably also, the probative value of her statement corroborating her own reports would have to be considered in light of the fact that they would clearly be self-serving. See Pond v. West, 12 Vet. 341 (1999). Under 38 C.F.R. § 3.303(d), service connection may be granted for any disease diagnosed after discharge when all the evidence [emphasis added], including that pertinent to service establishes that the disease was incurred in service. Chronic insomnia was diagnosed [long, some 26 years] after service. In support of this theory of entitlement the Veteran submitted (and her attorney cited in oral argument), a report of a study commissioned by the Department of Defense that found the long-term effects of service in combat/deployment in a combat zone included a greater incidence of insomnia than found in civilian populations. At the oral argument the undersigned noted that the study was specific for combat veterans, and that the Veteran in this case had peacetime service only. The Veteran's attorney argued that the findings in the study should be extended to all Veteran's because the "stimuli that gives rise to insomnia in veterans is just the interrupted sleep cycles that are just prevalent by just the nature of the service". Regarding the Department of Defense study submitted as textual evidence supporting the Veteran's claim, the Board finds that such evidence has no applicability in the instant case. The study was specific for Veterans who served in combat or combat zones, and nothing in the report itself extends the findings to peacetime veterans with no combat service. The attorney's argument that the findings should be extended to peacetime veterans are nothing more than bare speculation; no supporting authority is cited. The only competent evidence in the record that bears on the etiology of the Veteran's chronic insomnia consists of a 2009 treatment notation indicating that the insomnia is of unclear etiology (but also noting a diagnosis of bipolar disorder) and the clinical notations of medical history provided by the Veteran indicating that she has had insomnia for years, and extending back to service (pursuing a theory of entitlement that is invalid under the Federal Circuit determination in Walker, supra). In summary, the record does not include any evidence of a related disease or injury in service, and no competent evidence that the Veteran's chronic insomnia may be related to her service. The preponderance of the evidence is against this claim, and the appeal in the matter must be denied. ORDER Service connection for chronic insomnia is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs