Citation Nr: 21005816 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 181228-2365 DATE: February 2, 2021 REMANDED Entitlement to service connection for insomnia is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to August 1992. In May 2018 the Veteran elected the modernized review system. 38 C.F.R. § 19.2 (d). The Veteran selected the Higher-Level Review lane when he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Accordingly, the November 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board of Veterans’ Appeals (Board) and selected the evidence submission appeal lane. The Board issued a decision in October 2019 that, in relevant part, denied the Veteran’s claim for service connection for insomnia. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In a June 2020 order, the Court granted the parties’ Joint Motion for Partial Remand vacating and remanding the Board’s decision. The matter returns to the Board for further action consistent with the Joint Motion for Partial Remand. 1. Service connection for insomnia is remanded. As noted, this appeal is under the provisions of the AMA. However, when there are pre-decisional duty-to-assist errors, it is permissible for the Board to have them corrected before deciding the claims on appeal. Here, the appeal for service connection for insomnia must be remanded to correct a duty to assist error. As noted above, the Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand in June 2020. In pertinent part, the parties to the Joint Motion agreed that the Board had erred in relying on a January 2018 VA medical opinion to deny service connection for insomnia because the opinion was inadequate for adjudication purposes. Specifically, the parties determined the examiner had failed to support the conclusion that the Veteran’s insomnia was less likely than not incurred in or caused by service with sufficient rationale. First, the parties determined that the examiner had relied on the fact that there are no service treatment records documenting that the Veteran complained of or was treated for insomnia during her service, and concluded that, “[i]pso facto, the medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant’s current disability and his military service.” Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Second, the parties determined the VA examiner had improperly relied on her own negative credibility determination in rendering her opinion. Third, the parties noted that although VA examiner had noted a favorable 2017 private opinion, she did not sufficiently address the private opinion so as to permit the Board to weigh the two reports against each other. See June 2020 Joint Motion for Partial Remand, pages 7-9.   The January 2018 VA examiner also noted that the Veteran’s sleep apnea had been determined not service connected. However, service connection has since been granted for the Veteran’s sleep apnea, based in part on the Veteran’s lay reports of in-service sleep problems. See February 2020 Rating Decision. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). This amounts to a pre-decisional duty-to-assist error. When such an error is found, it is permissible for the Board to have the error corrected before deciding the claim on appeal. Thus, remand is required to correct pre-decisional duty-to-assist errors and to ensure compliance with the Court’s June 2020 order granting the parties’ Joint Motion for Partial Remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s insomnia. The examiner must opine whether insomnia is at least as likely as not (i.e., at least 50 percent probable) related to service or related (causation or aggravation) to a service-connected disease or injury to include but not limited to obstructive sleep apnea. Is insomnia considered a disease or injury? Is there an underlying pathology causing insomnia? A complete rationale must be provided for the opinion. The examiner must address the Veteran’s lay assertions that he had difficulty sleeping during service. The   Veteran is competent to report in-service sleeping problems. The examiner must adequately address the June 2017 private nexus opinion. The Board makes no determination as to credibility. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.