Citation Nr: A21008338 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 200423-81193 DATE: April 26, 2021 ORDER Service connection for insomnia is granted. REMANDED A rating higher than 10 percent for a right knee disability is remanded. FINDING OF FACT Resolving any reasonable doubt in the Veteran’s favor, his insomnia disorder is proximately due to his service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for insomnia have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1998 to October 1998 and from January 2000 to March 2002. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2020 rating decision issued by a Department of Veterans Affairs (VA) regional office. In April 2020, the Veteran requested Direct Review by a Veterans Law Judge under the modernized review system, also known as the Appeals Modernization Act (AMA), on a VA Form 10182, Notice of Disagreement. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Service Connection for Insomnia The Veteran asserts that his insomnia is secondary to service-connected right knee pain. After careful review, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). In its February 2020 decision, the AOJ found that the Veteran has been diagnosed with an insomnia disorder. Under the AMA, the Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). The question before the Board is therefore whether the insomnia disorder is proximately due to or aggravated by his service-connected knee disability. The record contains two VA medical opinions on the etiology of the Veteran’s insomnia. In January 2020, a Compensation & Pension (C&P) examiner determined that the insomnia disorder is at least as likely as not proximately due to chronic knee pain. The January 2020 examiner reasoned that an earlier examination from 2002 noted insomnia disorder (although the 2002 examiner failed to make that diagnosis), that the Veteran’s knee pain has created sleep issues, and that medical literature is replete with connections between chronic pain and insomnia. The Board finds this opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (an opinion is probative when it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data). The AOJ obtained a second opinion in February 2020. The February 2020 examiner found that insomnia is less likely than not proximately due to the service-connected disability, explaining that the Veteran has also been diagnosed with non-service-connected posttraumatic stress disorder (PTSD), that difficulty falling and staying asleep is a classic PTSD symptom, and that a separate insomnia diagnosis “is not technically accurate” in light of the PTSD diagnosis. The February 2020 opinion has less probative value than the January 2020 opinion. Unlike the January 2020 examiner, the February 2020 examiner failed to acknowledge that medical records show complaints of sleep problems going back to 2002, the year the Veteran separated from service. These complaints predate the 2020 PTSD diagnosis by nearly two decades. Additionally, while the February 2020 examiner noted that “pain could interfere with sleep,” the examiner did not provide an opinion on whether service-connected knee pain could have aggravated the Veteran’s sleep problems beyond their natural progression. The February 2020 opinion is thus inadequate to decide the claim. El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (VA medical opinions on secondary service connection must sufficiently address both causation and aggravation). Accordingly, resolving any reasonable doubt in the Veteran’s favor, the Board finds that his diagnosed insomnia disorder is proximately due to the service-connected right knee disability. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal is granted. REASONS FOR REMAND Increased Rating for Right Knee Disability The Veteran seeks a rating higher than 10 percent for service-connected Osgood-Schlatter’s Disease, right knee, status post arthroscopic debridement with ganglion cyst. He also requests a temporary total rating for a right knee surgery performed in August 2014. See April 2020 Notice of Disagreement. Under the AMA, the Board must remand claims to the AOJ to correct pre-decisional duty-to-assist errors, including the failure to obtain relevant records in the custody of a federal department or agency. 38 C.F.R. §§ 3.159(c)(2), 20.802. In this case, the AOJ did not obtain all relevant medical records in VA’s custody. VA treatment records from 2014 indicate that “Medical Documentation for Non-VA Care Services has been received and the results have been scanned.” These scanned documents are identified as a right knee MRI examination report, and the operative report for right knee arthroscopy, medial/lateral partial meniscectomies, and patella chondroplasty. See January 2014 & August 2014 Non-VA Care Consultation Notes. Although the scanned records were in VA’s custody at the time of the February 2020 rating decision, they are not part of the claims file. The Board finds that the records are relevant to the Veteran’s increased rating claim, and that the AOJ erred by failing to obtain and associate them with the file. Remand is necessary to correct this error. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: Obtain the scanned medical records identified in the January 2014 and August 2014 Non-VA Care Consultation Notes, and associate them with the claims file. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.