Citation Nr: 21027388 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-36 535 DATE: May 5, 2021 ORDER Entitlement to service connection for insomnia disorder is granted. REMANDED Entitlement to a disability rating in excess of 10 percent prior to April 3, 2017 and in excess of 30 percent thereafter, for bilateral hearing loss is remanded. Entitlement to service connection for a mental health disorder, to include post-traumatic stress disorder (PTSD), schizophrenia, schizoaffective disorder, anxiety, and depression, is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea, also claimed as secondary to service-connected disability and a mental health disorder, is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's insomnia disorder is caused by his service-connected hearing loss and tinnitus. CONCLUSION OF LAW The criteria for entitlement to service connection for insomnia disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1973 to August 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2014 rating decision, the Veteran was granted service connection for bilateral hearing loss with an evaluation of 10 percent, effective October 4, 2012. In a May 2017 rating decision, the evaluation was increased to 30 percent, effective April 3, 2017. In accordance with AB v. Brown, 6 Vet. App. 35 (1993), the matter remains on appeal. In June 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The Board notes that additional pertinent evidence has been associated with the claims file since the issuance of the May 2017 supplemental statement of the case. However, as the Board is granting service connection for insomnia disorder herein and remanding the remaining issues, the Veteran is not prejudiced by proceeding without agency of original jurisdiction (AOJ) consideration at this time. As a final preliminary matter, the Board notes that the AOJ adjudicated the Veteran's claim for service connection claim for a mental health disorder and insomnia disorder as one issue in the July 2014 rating decision on appeal. Although the Board finds that the claim for service connection for insomnia disorder can be finally adjudicated, the mental health disorder claim requires additional development. Therefore, the Board finds it appropriate to bifurcate the issues and adjudicate them separately. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) ("[b]ifurcation of a claim is generally within the Secretary's discretion"); see also Tyrues v. Shinseki, 732 F.3d 1351 (Fed. Cir. 2013); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions). 1. Entitlement to service connection for insomnia disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, and relevant in this case, service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Also, an increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310 (b); Libertine v. Brown, 9 Vet. App. 521 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In August 2018, the Veteran was afforded a VA examination and was diagnosed with insomnia disorder. Accordingly, the first element of secondary service connection is met. Furthermore, service connection is in effect for bilateral hearing loss and tinnitus. As such, the second element for service connection on a secondary basis is met. During the August 2018 VA examination, the Veteran reported that his tinnitus keeps him from sleeping well at night and keeps him from feeling rested during the day. After examination, the VA examiner found that insomnia due to an insomnia disorder is the only symptom attributable (in part) to the Veteran's hearing loss and tinnitus. The examiner found it is at least as likely as not that the Veteran's insomnia disorder is at least partially due to his service-connected tinnitus and hearing loss. Accordingly, after resolving doubt in favor of the Veteran, service connection for insomnia disorder is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 3.310; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to an initial disability rating in excess of 10 percent prior to April 3, 2017 and in excess of 30 percent thereafter, for bilateral hearing loss. The Veteran seeks a higher disability rating for his bilateral hearing loss disability. The Board finds that additional development is necessary prior to the adjudication of the claim. The Veteran last underwent a VA examination for his bilateral hearing loss disability in April 2017. At the June 2019 Board hearing, the Veteran indicated that his bilateral hearing loss has increased in severity. Furthermore, review of the record shows during an August 2018 mental health VA examination, the Veteran explained that his bilateral hearing loss disability has worsened. Additionally, private treatment records from October 2019 document a worsening in the Veteran's bilateral hearing loss disability since the April 2017 VA examination. Finally, in a September 2020 correspondence, the Veteran described his bilateral hearing loss as profound and declining. While the mere passage of time is not a basis for requiring a new examination, when there is evidence there has been a material change in the Veteran's disability, the current rating may be incorrect, or where the Veteran asserts that the disability has undergone an increase in severity since the last examination, a new examination must be provided. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Caffery v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). A remand is necessary to obtain a VA examination in order to assess the current nature and severity of his service-connected disability. 3. Entitlement to service connection for a mental health disorder, to include PTSD, schizophrenia, schizoaffective disorder, anxiety, and depression. The Veteran contends that his mental health disorder was incurred in active duty service. Alternatively, the Veteran asserts that his mental health disorder has been aggravated by his service-connected bilateral hearing loss. The Board finds that a remand is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. Once the VA undertakes providing a veteran with an examination, it has a duty to ensure it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In secondary service connection claims, a medical opinion is inadequate if it does not address both causation and aggravation of the nonservice-connected condition. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). In August 2018, the Veteran was afforded a VA examination. However, this medical opinion does not provide an adequate opinion regarding whether the Veteran's mental health disorder is caused or aggravated by his service-connected bilateral hearing loss. Although the VA examiner addressed secondary service connection, he did not adequately consider the relationship, or lack thereof, regarding aggravation between the service-connected disability and his mental health condition. Additionally, the August 2018 VA examiner did not address the Veteran's August 1974 separation examination Report of Medical History, in which the Veteran reported experiencing depression and excessive worry. See STRs. Therefore, a remand for a new VA opinion is required. Additionally, the Veteran receives VA and private treatment for his mental disorders; thus, all pertinent, outstanding treatment records should be obtained. The adjudication of the Veteran's PTSD claim is also deferred as a result of such. 4. Entitlement to service connection for a sleep disorder, to include sleep apnea, also claimed as secondary to service-connected disability and a mental health disorder. The Veteran contends that his sleep disorder, to include sleep apnea, was caused or aggravated by his service-connected bilateral hearing loss and/or tinnitus. He also asserts that his disorder was caused or aggravated by his mental health disorder. A VA examination and medical opinion is needed to ascertain whether the Veteran's sleep apnea was caused or aggravated by his service-connected bilateral hearing loss and/or tinnitus. Additionally, the remand of the Veteran's mental health disorder claim may impact his claim for service connection for a sleep disorder on a secondary basis. Finally, as the Veteran receives VA and private treatment for his sleep disorder, the Veteran's outstanding treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any relevant outstanding VA treatment records. 2. Send the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to VA, and with his consent, obtain any additional, relevant private treatment records as identified by the Veteran. 3. Schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss disability. The claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. All findings should be reported in detail. 4. Schedule the Veteran for a VA examination to obtain a medical opinion from an appropriate medical professional regarding the nature and etiology of his mental health disorder. After reviewing the entire claims file, to include a copy of this Remand, the examiner should opine as to: (a.) Whether the Veteran's mental health disorder, to include schizophrenia, schizoaffective disorder, anxiety, and depression, at least as likely as not (i.e., 50 percent or greater probability) had its onset in, or is otherwise related to, the Veteran's active service. The examiner should consider and address the Veteran's August 1974 Report of Medical History from the separation examination in which the Veteran reported experiencing depression and excessive worry. (b.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's mental health disorder was caused by his service-connected bilateral hearing loss and/or tinnitus. (c.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's mental health disorder was aggravated by his service-connected bilateral hearing loss and/or tinnitus. Aggravation means any incremental increase in disabilityany additional impairment of earning capacityin non-service-connected disabilities resulting from service-connected conditions...regardless of its permanence. A complete rationale must be provided for all opinions expressed. 5. Obtain a medical opinion from an appropriate medical professional regarding the nature and etiology of the Veteran's sleep disorder, to include sleep apnea. After reviewing the entire claims file, to include a copy of this Remand, the examiner should opine as to: (a.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) the Veteran's sleep disorder had its onset in, or is otherwise related to, the Veteran's active service. (b.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) the Veteran's sleep disorder was aggravated by his service-connected bilateral hearing loss and/or tinnitus, or any mental health disorder. Aggravation means any incremental increase in disabilityany additional impairment of earning capacityin non-service-connected disabilities resulting from service-connected conditions...regardless of its permanence. A complete rationale must be provided for all opinions expressed. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. B. Smith, 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.