Citation Nr: 21010244 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-25 163 DATE: February 24, 2021 ORDER Entitlement to service connection for insomnia is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a sleep disorder, such as insomnia, etiologically related to service, aside from his already service-connected sleep apnea. CONCLUSION OF LAW The criteria for entitlement to service connection for insomnia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1984 to October 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018 and most recently in September 2020, this matter was previously before the Board. Subsequently the claim for service connection for insomnia was remanded for additional development to include affording the Veteran a VA examination and to obtain any outstanding VA treatment records from September 2017 through May 2019. As discussed in greater detail below, the Veteran failed to attend the examination despite notice being sent to his last known address. There is no indication that notice was not received, and the Veteran has not otherwise provided good cause for his failure to appear for the examination. As such, the Board finds substantial compliance with the prior remand directives and will decide his claim based on the evidence of record. See 38 C.F.R. § 3.655, Stegall v. West, 11 Vet. App. 268 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. Neither the Veteran nor the representative has raised contentions regarding notice or assistance. Accordingly, the duty to notify and assist will not be further addressed. Therefore, the Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for insomnia is denied. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disease diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As discussed above, a requirement for service connection is a causal connection or nexus between the disease or injury in service and the current disability. At the outset the Board notes that the Veteran is already service connected for sleep apnea. While he has also been treated for insomnia and complaints of sleep problems noted as insomnia, to the extent these conditions are merely manifestations of his sleep apnea versus a separate disability, the Board notes the manifestations are already compensated by his sleep apnea disability rating. The Board further acknowledges, however, that service treatment records confirm complaints of sleep problems noted as insomnia. Therefore, the pertinent inquiry here is whether the Veteran has a sleep disorder, such as insomnia, which is separate from his already service-connected sleep apnea, which can be linked to his military service. For reasons outlined below, the Board finds he does not. The Veteran contends that he has insomnia, separate from his sleep apnea, and it is related to service. Specifically, he contends that his insomnia began during service and has progressively gotten worse ever since. Service treatment records show beginning in September 1993, the Veteran complained of insomnia. Complaints of insomnia were also noted in May 1997 twice, including a notation of “insomnia due to stress”. However, in June 1999 the Veteran reported he was in “excellent” health with no complaints of fatigability. The next report of sleep problems or notation of insomnia occurs in May 2009 in a report from Sleep Disorders Center of Northern New York, which noted the Veteran complained of loud snoring with hypersomnia, also known as excessive daytime sleepiness. Post service treatment records indicate the Veteran has consistently complained of snoring and sleep problems since separation and was subsequently diagnosed with sleep apnea in 2009. (Again, the Veteran has already been granted service connection for sleep apnea). In September 2010, the Veteran was afforded a VA examination for his sleep apnea. The examiner noted the Veteran’s reports of sleep problems beginning in and since service. However, the examiner did not provide a nexus opinion as to insomnia specifically. Rather, the examiner mentioned the presence of insomnia with “unclear etiology”. It was further noted that the Veteran uses a CPAP machine for his sleep apnea and that it seems to help with his sleep problems, but the mask is difficult to use. The Veteran’s complaints of insomnia continued in August 2012 and again in May 2015 where a primary care note indicated tramadol prescribed and used by the Veteran for pain potentially causing insomnia. It was not until September 2016, that the Veteran was first officially diagnosed with “clinical insomnia”. As noted above, the Veteran was scheduled for a VA examination in October 2019 to determine the nature and etiology of his claimed insomnia. Unfortunately, it was noted that he was a “no show”. To this date, the Veteran has not provided the VA nor his representative a willingness to attend another examination nor a good cause reason for his absence. See Informal Hearing Presentation, January 28, 2021. The VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this instance, the Veteran must aid in the development of his claim by attending the VA examination as requested. If the Veteran fails to attend his rescheduled examination, his claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. The Board notes that the Veteran has a current disability and there are complaints of sleep problems noted as insomnia in the Veteran’s service treatment records. However, the Veteran’s last reported complaint of sleep issues during service indicated hypersomnia and obstructive sleep apnea in 2009 with no clear etiology indicated for insomnia in 2010. The Veteran was first diagnosed with “clinical insomnia” in 2016 separate and apart from his sleep apnea, five years post service. Furthermore, the Veteran did not report for his October 2019 VA examination, and as a result no nexus opinion has been issued. Accordingly, there is no competent and credible evidence to establish a nexus between the Veteran’s current insomnia and service. The Board acknowledges the Veteran's statements attributing his insomnia condition to service, and although he is competent to describe symptoms of his insomnia, his lay observations are not competent to establish etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, the evidence of record indicates several potential causes of insomnia including stress, his already service-connected sleep apnea, pain medication, weight, age, and being male. Therefore, without a medical opinion, it is entirely unclear whether the Veteran even has a disability separate from his current service-connected sleep apnea manifested by insomnia (or some other sleep disorder) and, if so, the likely etiology of any such condition. The Board cannot make these medical determinations independently and, therefore, cannot grant service connection. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). The Veteran’s apparent unwillingness to attend a VA examination nor communicate his intentions with his representative necessitates that the Board adjudicate his claim based on the evidence of record. 38 C.F.R. § 3.655. Thus, the Board finds that the Veteran's claim must fail as the evidence does not show he has a sleep disorder diagnosis, such as insomnia, related to his military service (aside from his already service-connected sleep apnea). As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for insomnia on a direct or secondary basis, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b). As such, the claim must be denied. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.