Citation Nr: 21008507 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-27 468A DATE: February 17, 2021 ORDER Entitlement to service connection for a sleep disorder, claimed as insomnia, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for pancreatitis is remanded. Entitlement to service connection for residuals of a sexually transmitted disease is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a sleep disorder, claimed as insomnia, due to a disease or injury in service, to include a specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a sleep disorder, claimed as insomnia, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1986 to October 1986 and from April 1988 to August 2001, with additional service in the National Guard and Army Reserve until December 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran requested, but failed to appear for a Board hearing scheduled on May 4, 2017. As such, the Board finds that the Veteran’s hearing request has been withdrawn. This matter was previously remanded by the Board in August 2018. The actions requested at that time have been completed. Service Connection 1. Sleep disorder, claimed as insomnia The Veteran is seeking service connection for a sleep disorder, claimed as insomnia, that she believes is due to her service. The question for the Board is whether the Veteran has a sleep disorder that began during service, is at least as likely as not related to an in-service injury, event, or disease. For the reasons discussed below, the Board concludes that the Veteran does not have a sleep disorder that is due to her military service. The record reflects the Veteran has been diagnosed with insomnia. See November 2016 Private Treatment Record. Hence, the first element of service connection has been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.310. Next, as to the second element of service connection, in-service incurrence, the Veteran’s service treatment records are completely silent regarding complaints of, treatment for, or a diagnosis of a sleep disorder. Further, aside from the notation of insomnia in the private treatment records, the available VA and private treatment records do not include any notations that the Veteran has sought treatment for a sleep disorder during the appeals period. In connection with the Veteran’s claim for service connection for a psychiatric disability, which has not been established, she was afforded a VA psychiatric examination in August 2017. At that time, the VA examiner stated that the reported symptom of insomnia can be considered part of her major depressive disorder and does not warrant a separate diagnosis. Service connection for depression has previously been denied, and this denial is not presently on appeal before the Board. Even assuming the Veteran currently has a diagnosis of insomnia, to the extent the Veteran believes she is due to her military service, she is not competent to provide an opinion as to the etiology of the disorder in this case. The issue is medically complex and requires specialized medical education, as well as the ability to interpret complicated diagnostic medical testing are required. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board also notes that the Veteran has not been afforded a VA examination specifically addressing her claim, but the Board finds that an examination is not required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the evidence does not indicate the Veteran’s insomnia is due to or aggravated by her military service. The Veteran has not offered any competent and credible evidence to suggest otherwise. These facts are insufficient to trigger VA’s duty to provide an examination. See Waters, 601 F.3d 1274. Therefore, as the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b). As such, the claim must be denied. REASONS FOR REMAND 1. Bilateral hearing loss The Veteran is seeking entitlement to service connection for bilateral hearing loss that she believes is due to her military service. Here, the Veteran’s service treatment records do not show that she had a diagnosis of hearing loss at any point during service. However, a January 1991 service treatment record indicates the Veteran has routine exposure to hazardous noise. Further, the November 2014 VA examiner noted a significant threshold shift on examination that was at least as likely as not due to the Veteran’s military service. However, the audiometric results were insufficient to warrant a diagnosis of hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385. The Board finds a new VA examination is warranted as the last audiological evaluation of the Veteran was conducted over 6 years ago and it is unclear whether she currently has a diagnosis of hearing loss for VA purposes, especially in light of the findings rendered by the November 2014 VA examiner. Therefore, a remand is required. 2. Lumbar spine disorder The Veteran is seeking entitlement to service connection for a lumbar spine disorder that she believes is due to her military service. The Veteran was last examined by VA in November 2014. At that time, the examiner provided diagnoses of lumbosacral strain and degenerative arthritis of the spine. However, regarding the etiology of the claimed disorders, the examiner concluded it was less likely than not that these disorders were incurred in service. As rationale, the examiner acknowledged the in-service lumbar strain, but noted that it resolved. Further, the examiner pointed to the fact that there was no mention of lumbar complaints on the Veteran’s subsequent Reserve enlistment examination in 2004. The examiner therefore found that the current diagnoses occurred after separating from active military service. However, the VA examiner failed to identify a post-service injury or other cause that would account for the current diagnoses. As such, the Board finds this opinion is inadequate a remand is required for a new examination and etiological opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Pancreatitis The Veteran is seeking entitlement to service connection for pancreatitis that she believes is due to her military service. Here, the Veteran’s private treatment records show a diagnosis of chronic pancreatitis from 2006. See April 2016 Private Treatment Record. Additionally, the Board notes that the Veteran’s service in the Reserves concluded in December 2005, which is temporally close to her diagnosis of the claimed disorder in 2006. As the Veteran has not been afforded a VA examination to evaluate the nature and likely etiology of her diagnosed pancreatitis, the Board finds that she is entitled to one and is remanding this matter in order to afford her such an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Residuals of a sexually transmitted disease The Veteran is seeking entitlement to service connection for residuals of sexually transmitted disease that she believes is due to her military service. The Veteran’s service treatment records note several complaints of symptomatology commonly associated with sextually transmitted disease, to include an October 1998 notation of a “possible STD or UTI.” To date, the Veteran has not been afforded a VA examination to determine whether she currently has a sexually transmitted disease or residuals thereof and, if so, to evaluate the nature and likely etiology of any diagnosed disorders. Therefore, the Board finds that she is entitled to one and is remanding this matter in order to afford her such an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination for the purpose of confirming a diagnosis of bilateral hearing loss and then providing an opinion as to the likely etiology of any such diagnosed condition. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history, in-service exposure to hazardous noise, and assertions relating to her diagnosis of and treatment for any symptoms of hearing loss, both in service and thereafter. All necessary studies or tests must be accomplished. If a diagnosis of bilateral hearing loss for VA purposes is endorsed, the examiner is asked to opine as to whether it is it at least as likely as not (a 50 percent or greater probability) that the diagnosed hearing loss had its onset during service or is otherwise related to active service. In setting forth this opinion, the examiner must consider, and discuss as necessary, service treatment records showing that the Veteran was exposed to hazardous noise. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. With regard to this examination, the Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 2. Schedule the Veteran for a VA spine examination for the purpose of providing an opinion as to the likely etiology of any currently diagnosed lumbar spine conditions. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions relating to her diagnosis of and treatment for any symptoms of a back condition, both in service and thereafter. All necessary special studies or tests must be accomplished. For each diagnosed disorder, the examiner is asked to opine as to whether it is it at least as likely as not (a 50 percent or greater probability) that the condition had its onset during service or is otherwise related to active service. In setting forth this opinion, the examiner must consider, and discuss as necessary, service treatment records showing the in-service complaints of back pain and lumbar strain. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. With regard to this examination, the Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. If the Regional Office finds that an in-person examination is not necessary for the evaluation of the low back disorder, the Board defers to that determination and will accept an opinion based solely on a review of the claims file. 3. Schedule the Veteran for a VA examination with the appropriate medical professional for the purpose of providing an opinion as to the likely etiology of her diagnosed chronic pancreatitis. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history, and assertions relating to her diagnosis of and treatment for any symptoms of pancreatitis, both in service and thereafter. All necessary studies or tests must be accomplished. The examiner is asked to opine as to whether it is it at least as likely as not (a 50 percent or greater probability) that the diagnosed pancreatitis had its onset during service or is otherwise related to active service. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. With regard to this examination, the Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 4. Schedule the Veteran for a VA gynecological examination for the purpose of confirming a diagnosis of a sexually transmitted disease, or any residuals thereof, and then providing an opinion as to the likely etiology of any such diagnosed conditions. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history, in service treatment, and assertions relating to her diagnosis of and treatment for any symptoms of sexually transmitted diseases, both in service and thereafter. All necessary studies or tests must be accomplished. For each diagnosis rendered, the examiner is asked to opine as to whether it is it at least as likely as not (a 50 percent or greater probability) that the diagnosed disorder had its onset during service or is otherwise related to active service. In setting forth this opinion, the examiner must consider, and discuss as necessary, service treatment records showing relevant symptomatology. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. With regard to this examination, the Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 5. The Agency of Original Jurisdiction must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate, corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.