Citation Nr: 20028844 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-28 806 DATE: April 24, 2020 THE ISSUES Whether new material evidence has been received to reopen the claim for service connection for insomnia, claimed as a sleep disability; and if so, whether the claim should be granted. Entitlement to service connection for a right ankle disability. ORDER The petition to reopen the previously denied claim for entitlement to service connection for insomnia, claimed as a sleep disability, is granted. Entitlement to service connection for insomnia, claimed as a sleep disability, is granted. REMANDED Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT 1. Evidence that may prove or disprove the issue entitlement to service connection for a sleep disability was received after the August 2015 denial of that issue. 2. Resolving all doubt in his favor, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s insomnia, claimed as a sleep disability, is related to service. CONCLUSION OF LAW 1. As new material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for insomnia, claimed as a sleep disability, are met. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2019). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for insomnia, claimed as a sleep disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1986 to June 1990, February 1997 to June 1997, and February 2003 to May 2004. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly received evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ’s actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for a sleep disability, which was interpreted as a claim for a sleep apnea disability, was denied in a September 2015 rating decision based on a determination that the Veteran had a sleep apnea disability, but that it was not related to the Veteran’s service. This decision was not appealed nor was new and material evidence received within one year, accordingly, the determination was final. 38 C.F.R. §§ 3.156 (b), 20.1103 (2019). The evidence received in pertinent part since this decision includes a new claim from the Veteran that he actually suffers from insomnia in addition to his sleep apnea. In support of his contention, the Veteran submitted third-party correspondence from a fellow service member detailing the Veteran’s sleeping trouble immediately after return from deployment to Iraq. See September 2017 Buddy Statement. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims. Therefore, this evidence is new and material, and reopening of the of service connection for a sleep disability is warranted. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Entitlement to service connection for insomnia, claimed as a sleep disability. The Veteran is claiming that his sleep disability is related to service. Specifically, the Veteran argues that he suffers from a sleep disability separate and distinct from his sleep apnea and that was caused by stress and late-night patrols when he was deployed to Iraq. See April 2017 Statement in Support of Claim. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran was afforded a VA examination in June 2017. The VA examiner conducted an in-person review of the Veteran’s sleep and confirmed diagnoses of insomnia. Thus, the Veteran has met the first criteria for entitlement to service connection. 38 C.F.R. § 3.303 (a). As to the second prong of Shedden, in-service incurrence or aggravation of a disease or injury, the Board finds the Veteran to be a reliable historian of his experiences in service. See Jandreau, 492 F.3d at 1377. While deployed to Iraq from 2003 to 2004, he was the company commander of 130 soldiers. The Veteran described periods of stress and worry for the safety and wellbeing of his men. In particular, the Veteran claimed that he would “stay up for all hours of the night because [he] was concerned for [his] troops.” See June 2018 VA Form 9. The Veteran also contends that he would “walk [his] area to ensure that [his] soldiers were safe and secure” as he “did not trust the Iraqi [soldiers bedded down next to the camp in the perimeter of the base] because of certain events that happened while deployed.” See August 2017 Notice of Disagreement. The Veteran has consistently described above events. See April 2017 Statement in Support of Claim. A review of the Veteran’s service records reveal that the Veteran was deployed to Kuwait and Iraq from 2003 to 2004, as a combat engineer. See DD-214. Therefore, upon review of the Veteran’s claims file, the Board considers the Veteran to be a reliable historian as to his in-service experiences, and concedes an event in service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. Regarding the third criteria for service connection, the Board notes that the principles of 38 U.S.C. § 1154 (b) only pertain to what happened then, and do not establish an automatic relationship between the inservice injury and any current disability. To that end, it must be shown that it is as likely as not that the current condition is causally related to the claimed in-service event. As mentioned above, the Veteran underwent a VA examination for his non-sleep apnea sleep disability in June 2017. The examiner conducted an in-person evaluation and had access to the Veteran’s claims file and service treatment records (STRs). The VA examiner confirmed a diagnosis of insomnia. When asked for an opinion as to the etiology of the Veteran’s insomnia, the examiner wrote that the Veteran’s insomnia disorder is at least as likely as not incurred in or caused by the verified combat tour in Iraq during service. The VA examiner explained that the Veteran did not have sleep disturbances prior to service and that during his deployment, he would often stay up until “2-3 AM, patrolling the grounds to make sure his subordinates were safe.” The VA examiner further explained that the Veteran wakes up frequently at night due to small noises because he is afraid for his safety, and that he uses a CPAP for his unrelated sleep apnea disability. There is no evidence that the above-mentioned examiner was not competent or credible, and the opinion was based on a review of the medical evidence. As noted above, the probative value of a medical opinion is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See Guerrieri, 4 Vet. App. 467, 470-71 (1993). In this regard, the Board finds the June 2017 VA examination highly probative. The opinion is based on a thorough review of the Veteran's entire case file, including medical evidence and the Veteran's testimony, and the opinion address and takes into consideration the Veteran's specific circumstances. Additionally, there are no other medical opinions contradicting the findings of the June 2017 examination regarding the etiology of the Veteran’s insomnia disability. In light of the above, the Board finds that the elements of 38 C.F.R. § 3.304 (f)(3) have been satisfied and that the evidence is at least in equipoise as to whether the Veteran's insomnia, claimed as a sleep disorder, is related to his active duty service. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND Entitlement to service connection for a right ankle disability is remanded. The Veteran contends that he suffers from a right ankle disability, which he incurred in active duty service, and complains of ongoing pain. The Veteran was afforded a VA examination in May 2017. The examiner noted that the Veteran reported swelling and pain, and that he had to take motrin and be careful how he walks since an ankle injury while deployed to Iraq in 2003. However, the examination revealed that “the Veteran does not have a current diagnosis associated with any claimed condition.” The examination reveals that the Veteran contends that he suffers from flare-ups of ankle pain “one or twice a week” and that he cannot walk on uneven ground. The United States Court of Appeals (Court) has held that pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, in light of Saunders, a remand is necessary to obtain an additional VA examination. The examiner is directed to report the Veteran’s current symptomatology and to address whether the Veteran’s reported pain results in any functional impairment. See Saunders, 886 F.3d at 1362. The matters are REMANDED for the following action: 1. Ensure that any outstanding and relevant treatment records are obtained and associated with the Veteran’s electronic claims file. 2. Thereafter, schedule the Veteran for VA examinations with physicians to determine the nature and etiology of his asserted right ankle disability. Make the claims file and a copy of this REMAND available to the examiner for review of the case. The examiner should review all records associated with the claims file and should note that this case review took place. After reviewing the record, and considering the Veteran’s contentions, the examiner should address the following questions: (a) The VA examiner is to clarify whether the Veteran has a current right ankle disability. If the Veteran does not have a current diagnosis associated with his reported right ankle symptoms, the examiner should state this with a fully reasoned explanation. The examiner should also state whether there is any functional impairment caused by the Veteran’s reported pain, to include any functional impairment caused by the Veteran’s reported pain during flare-ups. Evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. The examiner’s attention is directed to and the examiner is asked to address the veteran’s descriptions of ankle symptoms. Specifically, the examiner should address the Veteran’s contentions that his “ankle aches all the time,” that in the mornings “[he] has to take it easy before getting dressed because [his] right ankle hurts and is stiff,” and that he takes ibuprofen, which “helps a little” with his right ankle issue. See June 2018 VA Form 9. (b) For any disability identified in (a) above, is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s current right ankle disability had its onset in service or is otherwise related to service? A clear rationale for all opinions is necessary-to include providing citations to pertinent factual findings and in-service medical history and a discussion of the medical principles involved would be of considerable assistance to the Board. In addition, the examiner must explain the basis for any and all provided opinions. If an opinion cannot be provided without resorting to mere speculation, the VA examiner should discuss why an opinion is not possible. 3. Upon completion of the above, readjudicate the Veteran’s claim based on the entire record. If any of the benefits sought on appeal, remain denied, issue the appellant and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond before returning to the Board, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.