Citation Nr: 21064696 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-19 937 DATE: October 21, 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, July 2020, and January 2021, the Board remanded the above claim for additional development. 1. Entitlement to service connection for insomnia, including as secondary to service-connected sleep apnea, is remanded. As noted in the Board's January 2021 decision, 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). In January 2021, the Board remanded the Veteran's claim to obtain an addendum opinion as to the nature and etiology of any psychiatric sleep disorder, including insomnia, present at any time over the appeal period (from March 2011.) In January 2021, the Board noted a November 2020 VA addendum etiology opinion indicated the Veteran experienced an "obsessive thought process." This thought process was described as a "psychological trait" and suggested the Veteran's symptoms may be due to a personality disorder. Accordingly, the Board requested an opinion addressing whether the Veteran has a personality disorder and whether there is any additional psychiatric disability superimposed on to such a personality disorder as a result of his active service. Finally, the Board required an opinion as to whether any psychiatric sleep disability was secondary to service-connected sleep apnea was also requested. In providing the requested opinion the examiner was directed to specifically discuss the Veteran's service treatment records (including a March 1970 treatment record noting emotional stress, anxiety, inability to sleep, and treatment with Valium), his October 2017 testimony ("my mind never stops," "can't control my mind," "can't control my sleep"), mental health treatment records included in the claims file, and October 2012 and October 2013 VA examination reports which diagnosed insomnia. If insomnia or other psychiatric sleep disorder was not diagnosed the examiner was required to fully explain why the diagnostic criteria were not met. In July 2021, a new VA mental disorders examination was provided, and an additional etiology opinion was obtained. The examiner found the Veteran did not meet the criteria for the diagnosis of any mental disorder because his sleep disturbance did not cause clinically significant distress or impairment. She did not clearly indicate whether the Veteran failed to meet the diagnostic criteria for a psychiatric sleep disorder over the entire appeal period. She remarked that the Veteran woke frequently to urinate because of a prostate issue. She noted, after waking, the Veteran became anxious about the hours he had left to sleep. The examiner did not explain why anxiety over returning to sleep was not relevant to the criteria for a diagnosis of insomnia or any other psychiatric disorder. The examiner also noted in service treatment for insomnia and post service VA outpatient group therapy. However, she did not provide any discussion of this prior mental health treatment. She did not refer to or discuss the Veteran's October 2017 testimony or the October 2012 and October 2013 VA examinations which diagnosed insomnia. The July 2021 etiology opinion does not include the evaluation and discussion required in the Board's prior remand. The claim must be remanded to obtain an etiology opinion which complies with the Board's prior remand directives. See Stegall, 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 examiner confirms a diagnosis or finds no diagnosis, he or she must clearly state the time period over which this determination is applicable. 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 as to current sleep difficulty and his sleep problems which 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. (Continued on the next page) 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. 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.