Citation Nr: 21004605 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-19 937 DATE: January 27, 2021 REMANDED Entitlement to service connection for insomnia, including as secondary to service-connected sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1962 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2017, the Veteran testified at a hearing before the undersigned. In March 2018 and July 2020, the Board remanded the above claim for additional development. Entitlement to service connection for insomnia, including as secondary to service-connected sleep apnea, is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Personality disorders are not considered diseases or injury for which service connection may be granted, 38 C.F.R. §§ 3.303(c), 4.9, 4.127, but service connection may be granted for additional disability superimposed on top of a personality disorder resulting from a disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by active service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term “noted” refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran’s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. When the presumption of soundness is not rebutted, the claim must be treated as a direct service connection claim. In March 2011, the Veteran filed a claim seeking service connection for sleeplessness. Service treatment records show the Veteran reported difficulty sleeping due to emotional strain and anxiety in March 1970. A medication, Valium, was prescribed. In October 2017, the Veteran testified that he recalled first having difficulty falling asleep while serving on active duty in Korea. An October 2012 VA mental disorders examination and an October 2013 VA PTSD examination confirmed a diagnosis of primary insomnia. The October 2012 and October 2013 examiners opined the Veteran’s insomnia was less likely than not causally related to his active service. In March 2018, the Board found the medical evidence of record was inadequate to determine the claim. The issue of service connection for insomnia was remanded so that an additional VA etiology opinion could be obtained. In June 2019, a VA mental disorders examination was provided. The June 2019 examiner found the Veteran experienced “sleep disturbances” but did not meet the diagnostic criteria for any mental health disorder. In July 2020, the Board found this evaluation was inadequate. The claim was remanded to obtain an additional etiology opinion. The examiner was directed to determine whether the Veteran met the diagnostic criteria for insomnia or other mental health condition affecting sleep. In providing this diagnosis, the examiner was required to discuss the Veteran’s October 2017 testimony, mental health treatment records from Detroit Vet Center records and the Detroit VA Medical Center, and the October 2012 and October 2013 diagnosis of primary insomnia. If insomnia or other psychiatric sleep condition was diagnosed, the examiner was asked to opine whether it was causally related to the Veteran’s active service, including service treatment records from March 1970 which documented a report of sleep problems due to anxiety. In October 2020 a new VA mental disorders examination was provided. The examiner stated the Veteran did not currently have, and had not previously been diagnosed with, any psychiatric illness. She listed, without discussion, the dates the Veteran attended mental health therapy sessions and the dates he was prescribed psychiatric medications. She noted, without discussion, the Veteran’s reports of current sleep problems and his recollection of experiencing sleeping problems during his active service. The October 2020 VA examination is inadequate because it does not include the discussion required by the Board’s July 2020 remand. See Stegall, supra. The October 2020 examiner submitted an addendum opinion in November 2020. This addendum opinion asserted the examiner’s disagreement with the October 2012 and October 2013 diagnoses of insomnia. In support, she stated the Veteran did not meet the diagnostic criteria for any psychiatric illness at the time of the October 2020 exam. She did not address whether diagnostic criteria were met at any point over the appeal period. In addition, she stated “there is no clinically significant distress or impairment present.” She did not explain how the level of distress or impairment was relevant to the diagnostic criteria for insomnia. Accordingly, the November 2020 addendum opinion is also inadequate. See Stefl, supra. The October 2020 examiner also observed service connection is established for the Veteran’s sleep apnea condition. She suggested his sleep difficulties may be related to this condition. In January 2021, the Veteran’s representative submitted an Informal Hearing Presentation. He identified medical literature suggesting insomnia may be caused by sleep-related disorders, including sleep apnea. Thus, the issue of secondary service connection has been raised, but a VA examination has not been provided to evaluate this contention. See 38 C.F.R. § 3.310; see also McLendon, supra. In addition, the November 2020 addendum opinion repeated the October 2012 examiner’s observation that the Veteran experienced an “obsessive thought process” which was a “psychological trait” and not related to events which occurred during his active service. This statement suggests the Veteran’s symptoms may be due to a personality disorder. The Veteran’s July 1962 entrance examination did not note any pre-service sleep difficulties. The Veteran is presumed to have been sound when he entered into active service. Further, there is no evidence, including clear and unmistakable evidence, to rebut this presumption. Thus, the presumption of soundness is not rebutted. See 38 U.S.C. § 1111; see also Wagner, supra. However, as a personality disorder may be indicated, an additional medical opinion must be obtained. This examination must evaluate whether the Veteran has a personality disorder and whether any additional psychiatric disability was superimposed on such a personality disorder due to the Veteran’s active service. See McLendon, supra. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any psychiatric sleep disorder, including insomnia. The examiner must first determine whether it is at least as likely as not that the Veteran has a personality disorder. The examiner should note that although service connection cannot be awarded for a personality disorder, service connection can be awarded for an acquired psychiatric disability superimposed on a personality disorder if the acquired psychiatric disability is related to active duty service. The examiner must then determine if the Veteran met the diagnostic criteria for insomnia or any acquired psychiatric sleep disorder at any point in time during the appeal period (from March 2011). If the Veteran is NOT diagnosed with a personality disorder but IS diagnosed with an acquired psychiatric sleep disability, then the examiner is asked to address the etiology of the acquired psychiatric sleep disability. Specifically, the examiner must opine whether it is at least as likely as not that the disability is related to the Veteran’s military service, including service treatment records from March 1970 which include a report of sleep problems due to anxiety and his October 2017 testimony recalling sleep problems began during active service. If the Veteran is NOT diagnosed with a personality disorder but IS diagnosed with an acquired psychiatric sleep disability and the examiner opines the acquired psychiatric sleep disability is less likely than not directly related to the Veteran’s active service, he/she must also opine whether the acquired psychiatric sleep disability is secondary to the Veteran’s service connected sleep apnea. To evaluate this issue, the examiner must opine whether any psychiatric sleep disability at least as likely as not proximately due to his service-connected sleep apnea and whether any psychiatric sleep disability is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected sleep apnea. The examiner is advised, if aggravation is found, he/she should attempt to quantify the degree of additional disability resulting from the aggravation by establishing the baseline level of severity of the psychiatric sleep disability prior to aggravation by the service-connected sleep apnea. In evaluating whether any sleep difficulty disability or symptoms are secondary to sleep apnea, the examiner must specifically discuss the medical information referenced in the January 2021 Informal Hearing Presentation submitted by the Veteran’s representative Finally, if the Veteran IS diagnosed with a personality disorder AND IS diagnosed with an acquired psychiatric sleep disorder, such as insomnia, the examiner must opine whether the sleep disorder was at least as likely as not superimposed on the personality disorder during active service and resulted in additional disability. If so, the examiner must describe the resulting additional disability. In providing all requested opinions, the examiner must fully review the claims file. He/she must specifically discuss the service treatment records, the Veteran’s October 2017 testimony, the mental health treatment records associated with the claims file (Detroit Vet Center, and VA medical Center), the October 2012 and October 2013 VA examination reports (which diagnosed insomnia), and the March 1970 service treatment entry. If insomnia or other psychiatric sleep disorder is not diagnosed, a full explanation as to why the diagnostic criteria are not met must be provided. A complete rationale must be provided for all opinions. If the clinician dismisses any lay reports from the Veteran, a reason for doing so must be provided. Lay reports may not be dismissed solely on the basis that they are not recorded in contemporaneous treatment records If an additional examination is required, schedule such an examination. If feasible, schedule a telehealth examination. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.