Citation Nr: 21022645 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 13-23 953 DATE: April 16, 2021 ORDER Entitlement to service connection for insomnia as secondary to service-connected lumbar spine disability is granted. REMANDED Entitlement to service connection for left hip osteonecrosis, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s insomnia is aggravated by his service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for service connection for insomnia as secondary to service-connected lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from June 1966 to December 1986. See Certificates of Release of Discharge From Active Duty DD Form 214. This appeal was previously remanded by the Board in February 2018, and most recently in November 2020. See February 2018 BVA Decision; see November 2020 BVA Decision. The Board observes that the issue of service connection for peripheral edema was remanded most recently in November 2020, and while on remand, in December 2020 the RO granted entitlement to left and right lower extremity peripheral neuropathies (claimed as edema), and this is considered a full grant pertaining to the service connection claim, such that this matter is no longer before the Board. See December 2020 Rating Decision-Narrative. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board observes that peripheral neuropathy of the upper extremities is service connected. See December 2020 Rating Decision-Codesheet. Service Connection 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). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 1. Entitlement to service connection for insomnia to include as secondary to service-connected lumbar spine disability. The Veteran contends that his insomnia is secondary to his service-connected lumbar spine disability, and related pain. See May 2009 Report of General Information. January 2012 rating decision granted service connection for degenerative joint disease of the lumbar spine effective August 30, 2005. See January 2012 Rating Decision-Narrative. Here, the evidence simply does not support a finding of direct service connection where there is not an in-service occurrence or injury, and the Veteran does not contend otherwise. Although the November 2020 Board remand included a request for a direct opinion, this was erroneous based on the evidence of record, and specifically where the Veteran did not indicate any event, injury, or disease in service as the cause of his insomnia. The evidence does, however, support a finding of secondary service connection. The January 2021 VA examination shows the Veteran has a current disability of insomnia, and the VA examiner opined that it is at least as likely as not the Veteran’s back pain aggravated or caused his insomnia, noting that the insomnia was multi-factorial, and the back pain was a substantial contributor to the insomnia. See January 2021 VA Examination Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current insomnia is aggravated by his service-connected lumbar spine disability and related pain. Accordingly, after resolving all doubt in the Veteran’s favor, the Board finds that service connection for insomnia is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for left hip osteonecrosis, to include as secondary to service-connected disabilities is remanded. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities is remanded. In November 2020 the Board remanded for VA examinations to address the claims for entitlement to service connection for left hip osteonecrosis and for hypertension on both direct and secondary bases. See November 2020 BVA Decision. Even so, the December 2020 VA examiner provided negative nexus opinions on a direct basis, without providing any opinion as to the secondary theory of service connection. See December 2020 VA Examination Bones (Fractures and Bone Disease); see December 2020 VA Examination Hypertension Disability Benefits Questionnaire. As such, remand for compliance with the previous remand directives is necessary to obtain adequate etiological opinions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 2. Schedule the Veteran for a VA examination by an appropriate clinician (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any osteonecrosis, and hypertension. The examiner must opine whether: (a) any left hip osteonecrosis is at least as likely as not related to an in-service injury, event, or disease. If not, then the examiner must consider whether it is at least as likely as not that any osteonecrosis is: (1) proximately due to a service-connected disorder, or (2) underwent any incremental increase in disability, regardless of its permanence by service-connected disability. The term “incremental increase” in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. (b) any hypertension is at least as likely as not related to an in-service injury, event, or disease. If not, then the examiner must determine whether it is at least as likely as not that any hypertension is (1) proximately due to a service-connected disorder, or (2) underwent any incremental increase in disability, regardless of its permanence by service-connected disability. The examiner should discuss the import, if any, of the Veteran’s headaches and heightened blood pressure readings, especially from the 1980s and 1990s. •The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. •Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. •A complete rationale for the medical opinions expressed must be provided. 3. THE AOJ 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. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barner, 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.