Citation Nr: 21006875 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-08 122 DATE: February 5, 2021 ORDER Entitlement to service connection for insomnia is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability is remanded (TDIU). FINDING OF FACT The Veteran’s insomnia is a symptom of his service-connected posttraumatic stress disorder (PTSD) and not a distinct disability. CONCLUSION OF LAW The criteria for service connection for insomnia as a disability apart from PTSD are not met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 2005 to September 2009. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from an August 2015 and a March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office. The Board issued a decision in August 2019 denying service connection for bilateral hearing loss and remanding service connection for tinnitus, sleep apnea, insomnia, and entitlement to a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s August 2019 decision pertaining to the denial of service connection for left ear hearing loss, as the Veteran did not contest the Board’s decision denying service connection for right ear hearing loss. The Court then remanded the claim for left ear hearing loss to the Board for additional development and readjudication. 1. Entitlement to service connection for insomnia The Veteran claims he is entitled to service connection for insomnia as secondary to his service-connected PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For the reasons that follow, the Board finds that the Veteran does not have a current disability of insomnia. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The preponderance of the evidence demonstrates that his insomnia is a symptom of his PTSD, not a separate disability for which service connection may now be granted. Ordinarily, separately diagnosed injuries are rated individually and then combined into a single rating to determine the overall impairment of a veteran’s condition. 38 C.F.R. § 4.25. Where a veteran has more than one psychiatric disability, each may be separately service connected. Amberman v. Shinseki, 570 F.3d 1377 (2009). Those disabilities may be rated as a single disability due to overlapping symptomatology or rated independently and combined if each has distinct, non-overlapping symptomatology. Reading the Veteran’s filings liberally, he contends that he has disabilities of both PTSD and insomnia and seeks service connection for insomnia to pursue the ratings anticipated by Amberman. To award service connection, psychiatric disabilities must be diagnosed in conformity with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020); 38 C.F.R. § 4.125(a). A September VA disability benefits questionnaire (DBQ) noted the Veteran claimed a disability pattern related to sleep disorder, insomnia, and depression. In an October VA examination, the examiner included the Veteran’s chronic sleep impairments as one of the symptoms considered in his PTSD diagnosis. The examiner then opined as to the Veteran’s sleep disorder and insomnia symptoms, saying these symptoms are best described by the diagnosis of PTSD that he has received in recent years. In a November 2019 VA examination, the examiner indicated that chronic sleep impairment was a symptom of his diagnosed PTSD. He also marked sleep disturbances (e.g., difficulty falling or staying asleep or restless sleep) as one of the diagnostic criteria from the DSM-5 he used for diagnosing the Veteran’s PTSD. Based on the evidence of record, the Board finds that a separate rating for insomnia apart from the previously service-connected PTSD is not warranted. The physician noted that the insomnia was best characterized by the diagnosis of PTSD. Therefore, to grant separate ratings for PTSD and insomnia based on the same symptomatology is restricted by the rule against pyramiding. See 38 C.F.R. § 4.14. Since all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be generally assigned that encompasses all of the Veteran’s overlapping psychiatric symptoms. While separate ratings may be warranted for different psychiatric disorders in some circumstances, Amberman, 570 F.3d at 1381 (“We recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability”), separate ratings are not warranted in this case given the specific medical finding that the PTSD symptomatology overlaps with insomnia symptomatology. Moreover, this is a complex medical question as to which lay testimony is not competent. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). The Veteran has not asserted that a medical professional has told him that he has a disability other than his already service-connected PTSD which is productive of his insomnia. Thus, the Veteran is not entitled to separate ratings for symptoms or impairment of insomnia and PTSD. Accordingly, the medical evidence uniformly indicates that the Veteran’s insomnia is a symptom of his service-connected PTSD. The lay evidence is not competent to establish the current disability in this case. The preponderance of the evidence establishes that he does not have a separate, current disability characterized by insomnia. The Board concludes that the criteria for service connection are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The benefit of the doubt rule does not apply, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. The August 2020 Court Order remanded the matter for action consistent with the terms of the JMPR. The JMPR deemed that the Board erred when it failed to provide an adequate statement of reasons and bases for its reliance on the February 2016 VA examination. Specifically, pointing to it being unclear as to whether the examiner considered the Veteran’s statements concerning exposure to improvised explosive devices (IEDs) while in service, and which audiograms were relied on and what the threshold shifts were measured against when making the determination. A remand is necessary to obtain an opinion whether the Veteran’s exposure to IEDs during service caused or aggravated his left ear hearing loss, and the examiner should note which audiograms are used in the determination of the Veteran’s left ear hearing loss. 2. Entitlement to service connection for tinnitus is remanded. The Veteran appeals the denial of service connection for tinnitus. The Veteran contended his tinnitus is secondary to any mental condition, to include PTSD, or secondary to any medications (or other therapeutic treatment) the Veteran has been prescribed in treatment of any service-connected condition. The February 2016 VA examination did not discuss whether the Veteran’s tinnitus could be related to any medications he is prescribed for his service-connected disabilities. In addition, it is unclear whether the examiner considered the Veteran’s statements of exposure to IEDs when determining the Veteran’s tinnitus claim. Therefore, a remand is necessary to obtain an opinion as to whether the Veteran’s exposure to IEDs during service caused his tinnitus, or whether the Veteran’s prescribed medications for his service-connected disabilities caused his tinnitus. 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran appeals the denial of service connection for OSA. In an October 2018 VA examination, the examiner determined the Veteran did not have a disability pattern with an unknown or partially unknown etiology, and that it was less likely than not that the Veteran’s OSA was related to his service in the Gulf. The examiner opined that the Veteran’s morbid obesity and neck circumference were the most likely cause of his OSA. However, the Veteran, through his representative, suggested the Veteran’s obesity is secondary to his PTSD, and therefore serving as an intermediary cause for the Veteran’s OSA. Also, in a mental health note, it is noted the Veteran stated he has turned to over-eating due to depression and that he has gained 40 pounds in the last month. Therefore, a remand is necessary to obtain an opinion as to whether the Veteran’s OSA is at least as likely as not aggravated by the Veteran’s service-connected PTSD and whether the Veteran’s service-connected PTSD caused him to become obese, and, if yes, whether his obesity in particular is a substantial factor in causing his OSA. 4. Entitlement to a total disability rating based on individual unemployability is remanded. The Veteran’s claim from TDIU remains inextricably intertwined with the above remanded service connection issues, as entitlement could be affected based on service connection for one or more of these issues being granted. Therefore, pending the development and readjudication of the other claims on appeal, the claim for a TDIU must be remanded. The matters are REMANDED for the following actions: 1. Associate with the claims folder updated treatment records. 2. Obtain addendum opinion from the appropriate clinician to determine the nature and etiology of the Veteran’s left ear hearing loss and tinnitus. The examiner is asked to provide responses to the following: (a.) Whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s left ear hearing loss was incurred in, or is otherwise related to, his active service. The examiner must consider the Veteran’s statements concerning noise exposure during service, to include due to IEDs. (b.) Whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s tinnitus was incurred in, or is otherwise related to, his active service. The examiner must consider the Veteran’s statements concerning noise exposure during service, to include due to IEDs. (c.) Whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s tinnitus was caused by his service-connected PTSD, or any medications he has been prescribed for his service-connected disabilities. 3. Obtain addendum opinion from the appropriate clinician to determine the nature and etiology of the Veteran’s OSA. The examiner must provide an opinion to the following: (a.) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s sleep apnea was aggravated by the Veteran’s service-connected PTSD? (b.) If the Veteran’s OSA was not aggravated by his service-connected PTSD, is it at least as likely as not (50 percent or better probability) that his service-connected PTSD caused the Veteran to become obese? (c.) If so, was the resulting obesity a substantial factor in causing the Veteran’s OSA? (d.) If yes, but for the Veteran’s obesity, would the Veteran have developed OSA? 4. All examiners must review the entire claims folders, including a copy of this remand. If the examiner finds an examination is necessary, then schedule the examination. A complete rationale must be provided for all opinions expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.