Citation Nr: 21025289 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-65 505 DATE: April 27, 2021 ISSUES Entitlement to service connection for a low back disability. Entitlement to service connection for insomnia. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for insomnia is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 2012 to September 2016. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 and December 2016 rating decision of a Department of Veterans Affairs Regional Office (RO). By way of background, the Veteran submitted an application for entitlement to service connection for a low back disability and insomnia in July 2016. The Veteran’s claim for insomnia was denied in a November 2016 rating decision. The Veteran’s claim for low back disability was denied in a December 2016 rating decision. The Veteran then filed a timely Notice of Disagreement in August 2017. The Veteran’s appeal was denied in a September 2017 Statement of the Case. The Veteran then filed a VA Form 9 Appeal to Board of Veterans’ Appeals in December 2017, requesting a Board hearing. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in September 2020. A transcript of the hearing is of record. The claim is now before the Board. The Board finds that additional evidentiary development is required before the claim on appeal is adjudicated. 1. Entitlement to service connection for a low back disability is remanded. The Veteran asserts his low back disability is related to pain from rucking and hiking and strenuous activities during service. As noted above, the Veteran was provided a hearing before the undersigned Veterans Law Judge in September 2020. During the hearing, the Veteran testified to hurting his back through rucking, hiking, and strenuous activities during service. The Veteran also testified that when telling his command of his back pain, he was told to suck it up. The Veteran then testifies that he would take painkillers, use ice, or use Icy Hot on a regular basis. The Veteran further testified he sought treatment from private providers for his back as early as one month following discharge. Turning to a review of the record, the Veteran’s separation examination from service notes complaints of back pain or back problems. Associated with this finding, the Veteran was afforded a VA examination in October 2016 where the examiner diagnosed intermittent lumbar muscle spasm. The examiner noted the Veteran did not have a current spasm at the time of exam and that the Veteran reported intermittent spasms. The RO then requested clarification by way of an examination addendum. In the November 2016 addendum, the examiner indicated there is no current evidence of a chronic diagnosis of the low back condition. The Veteran was ultimately denied service-connection for a low back condition based on no diagnosed chronic disability. In its recent opinion in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that "'disability' in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment." 886 F.3d 1356. On this basis, the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." Id. At 1368-69. However, the Federal Circuit also made clear that a veteran cannot "demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran's pain must amount to a functional impairment. Therefore, to establish the presence of a disability, a veteran will need to show that pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. In determining whether a person’s pain reaches the level of “functional impairment of earning capacity,” both medical and lay evidence must be considered. 38 C.F.R. § 3.303 (a); see also 38 C.F.R. § 4.10 (“Functional impairment”) (“The basis of disability evaluations is the ability of the body... to function under the ordinary conditions of daily life including employment.”). To be clear, Saunders does not state that medical or “objective” evidence is required to show a functional impairment. Rather, consistent with Federal Circuit precedent, in assessing functional impairment, a veteran’s lay assertions may be weighed against contrary medical evidence, but not categorically dismissed. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Board notes that despite the VA examiner not finding the Veteran had a current diagnosis, VA examination is inadequate pursuant to Saunders. The Veteran has provided lay statements and competent testimony describing pain. More importantly, the Veteran has indicated that the pain he experiences from his claimed back disability, has led to a functional impairment. He has described having to take painkillers, and to use ice and/or Icy Hot on a regular basis. Thus, pursuant to Saunders, the Veteran's claim must be remanded for a VA examination. 2. Entitlement to service connection for insomnia is remanded. The Veteran asserts his insomnia is related to his insomnia in service. As noted above, the Veteran was provided a hearing before the undersigned Veterans Law Judge in September 2020. During the hearing, the Veteran testified to experiencing insomnia during service when reminiscing on having to clean dead bodies that were burned alive during a fire. The Veteran also testified to taking melatonin prior to treatment for insomnia. The Veteran further testified to officially seeking medical treatment for insomnia about two or three months prior to the hearing. Turning to a review of the record, the Veteran’s service treatment records show a diagnosis of insomnia in May 2016. Notably the diagnosis is not made by a mental health professional nor is it noted to conform with the DSM-5 criteria. The treatment records indicate the Veteran reported difficulty sleeping in a setting of multiple life stressors. Associated to the finding the Veteran was afforded a VA examination in October 2016. The examiner found the Veteran does not have a mental diagnosis that conforms to the DSM-5 criteria, to include insomnia. The Veteran was ultimately denied service-connection for insomnia based on no diagnosis without discussion of the in-service diagnosis of insomnia. The Court has held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Recently, the Court expanded this ruling and held that Saunders is not limited to pain, such that a disability for VA purposes includes any condition that results in functional impairment of earning capacity. Martinez-Bodon v. Wilkie, No. 18-3721, 2020 U.S. App. Vet. Claims (Vet. App. Aug. 11, 2020). However, with respect to mental conditions, compensation is limited to disabilities that conform to a DSM-5 diagnosis. Id. The Board notes that despite the VA examiner not finding the Veteran had a current DSM-5 diagnosis, VA examination is inadequate as it does not address the Veterans in-service diagnosis or reported functional impairment. The Veteran has provided lay statements and competent testimony of functional impairment. More importantly, the Veteran was treated and diagnosed with insomnia, though the diagnosis did not conform to DSM-5, which indicated that the insomnia he experiences from has led to a functional impairment. Thus, pursuant to Saunders, the Veteran's claim must be remanded for a VA examination. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for physicians that he has obtained treatment from for his lower back disability and for his insomnia. Upon receipt of any completed VA Form 21-412, make the necessary requests to the identified physicians for treatment records. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any low back disability, to include functional impairment due to pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to pain on use and should state whether any pain claimed by the Veteran is supported by adequate pathology or is evidenced by his visible behavior, e.g., facial expression or wincing, or pressure or manipulation. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s low back disability at least as likely as not related to service, including the complaints of pain, rucking, hiking, and strenuous activities? 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran’s insomnia. The examiner should describe in detail the presence or absence and the extent of any functional loss due to insomnia. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s insomnia at least as likely as not related to service, including the diagnosed insomnia in service? Is the Veteran’s insomnia at least as likely as not related to service, including the Veteran’s reports of cleaning dead bodies and vehicles out from a fire? Any opinion offered should be accompanied by the underlying reasons for the conclusions. The examiner must provide a complete rationale for the opinion provided. Complete rational should include an explanation of the evidence used to support the opinion, as well as an explanation as to why that evidence supports the conclusion. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the clinician must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the clinician (i.e. additional facts are required or the clinician does not have the needed knowledge or training). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lang, 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.