Citation Nr: 1823596 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 14-31 466A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for dysautonomia. 2. Entitlement to service connection for insomnia. ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1990 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision and notification letter of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied service connection for dysautonomia and insomnia, and denied SMC based on the need for aid and attendance or housebound status. In March 2013, the Veteran filed a notice of disagreement as to all issues addressed in the October 2012 rating decision and notification letter, and a statement of the case was issued accordingly in August 2014. Thereafter, in a September 2014 VA Form 9, substantive appeal, the Veteran limited her appeal to the claims of service connection for dysautonomia and insomnia. Also in the Veteran's September 2014 VA Form 9, substantive appeal, she requested a hearing before the Board. Such a hearing was scheduled for October 25, 2017; however, the Veteran did not appear for the hearing. She has neither requested a new hearing, nor provided good cause for her absence. As such, her hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704 (2017). In September 2017, the Veteran revoked Jan Dils as her attorney representative. As the Veteran has not since appointed another representative, the Board recognizes the Veteran as now proceeding pro se in this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a thorough review of the record, the Board finds that remand is necessary to ensure due process is followed and there is a complete record upon which to decide the Veteran's claims. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Significantly, the Veteran was afforded a February 2011 VA general medical examination in conjunction with her then pending claim for a total disability rating. During this examination, the Veteran reported that she had a current diagnosis of dysautonomia and that symptomatology attributable to her dysautonomia was present during service. The Veteran has not yet been afforded a VA examination in conjunction with her service connection claim; however, in light of her contentions, the Board finds that a VA examination and medical opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006). Regarding the Veteran's claim of service connection for insomnia, the Board emphasizes that VA treatment records reflect the Veteran's insomnia has been characterized as both a symptom of her service-connected major depressive disorder (MDD) and a standalone diagnosis. See September 2009 VA Examination report and August 2010 VA Treatment records. Therefore, in light of the available evidence, it is unclear whether the Veteran's insomnia is, in itself, a disability or whether it is a symptom of her service-connected MDD. Accordingly, on remand, the AOJ should procure a VA examination to provide a clarification opinion. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance, if needed, obtain copies of any pertinent records and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above records requests have been completed, to the extent possible, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's dysautonomia. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. After considering the pertinent information in the record, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's dysautonomia had its onset during active service, or is otherwise related to active service, The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above records requests have been completed, to the extent possible, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's insomnia. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner must identify whether the Veteran's insomnia is a symptom of her service-connected MDD or whether it is a separate disability, b) If the examiner finds that insomnia is a separate disability, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the insomnia had its onset in service, is otherwise related to service, or was caused or aggravated by her service-connected MDD For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the requested development has been completed, the AOJ shall review and readjudicate the claims on appeal. If any decision is adverse to the Veteran, she shall be furnished a Supplemental Statement of the Case and provided with the opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).