Citation Nr: 21028160 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 10-49 237 DATE: May 10, 2021 ORDER Entitlement to service connection for a sleep disorder diagnosed as insomnia is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder and unspecified anxiety disorder, with consideration as being secondary to service-connected bilateral hearing loss, tinnitus, and insomnia, is remanded. Entitlement to service connection for a sleep disability other than insomnia, to include sleep apnea, with consideration as being secondary to service-connected bilateral hearing loss, tinnitus and insomnia, and/or non-service-connected acquired psychiatric disorder, with unspecified depressive disorder and unspecified anxiety disorder, is remanded. Entitlement to a total disability rating based on individual unemployability ("TDIU") due to service-connected disabilities is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his sleep disability diagnosed as insomnia began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a sleep disability diagnosed as insomnia have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1977 to September 1981. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from December 2009, October 2011, and July 2013 rating decisions issued by the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2016. A transcript of the hearing is associated with the record. Entitlement to service connection for a sleep disability, to include insomnia, as well as secondary to service-connected hearing loss and tinnitus, and/or non-service-connected acquired psychiatric disorder, with unspecified depressive disorder and unspecified anxiety disorder, is granted. The Veteran asserts that his sleep disability began during his service. At the April 2016 Board's hearing, the Veteran testified that his sleep disability began during his 1977 in-service boot camp, and he had not slept for four hours straight in over 37 years. He further testified that he used to sleep eight hours every night until he joined the military service. During his October 2009 VA treatment, the Veteran indicated that he had trouble falling asleep for many years. During November 2009 VA treatment, the examiner noted the Veteran's history of inability to sleep at night and daytime sleepiness since his service. Also, in a December 2010 VA Form 9, the Veteran stated that his insomnia was related to another mental disorder. In a September 2019 VA Form 9, the Veteran stated that all of his medical conditions were inextricably intertwined. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 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 also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Secondary service connection requires: (1) a service-connected disability; (2) a nonservice-connected disability; and (3) evidence that the nonservice-connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability and not due to the natural progress of the nonservice-connected disability. Id. In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); 38 C.F.R. § 3.102. The existence of a current disability of insomnia is not in question because in the April 2019, June 2019, and in January 2020 VA examinations, the Veteran was diagnosed with insomnia disorder. Regarding the in-service incurrence of a disease or injury, the Veteran testified at the April 2016 Board's hearing that his trouble with sleeping began during his 1977 in-service boot camp, and he had not slept for four hours straight in over 37 years. He further testified that he used to sleep eight hours every night until he went into the military service. The October 2009, November 2009, and September 2010 treatment records; and the April 2019, June 2019 and January 2020 VA examinations indicate that the Veteran has been consistently reporting that his sleep disability began during his military service. The Board notes that the symptoms of sleep disability are readily observable by laypersons and does not require medical expertise to establish its existence. Furthermore, while the Veteran's service treatment records are negative for complaints of inability to sleep, he is nevertheless competent to report a history of sleep disability that began during service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); 38 C.F.R. § 3.159(a)(2). Hence, the Board finds the second element "in-service incurrence or aggravation of a disease or injury" of service connection is met. Lastly, regarding the causal relationship between the Veteran's diagnosed insomnia disorder and in-service incurrence of disease or injury, the Veteran was afforded VA examinations in April 2019, June 2019, and January 2020. In the April 2019 VA examination, the examiner opined that it was at least as likely as not (a 50 percent probability or greater) that any diagnosed sleep disability began in service, was caused by service, or is otherwise related to the Veteran's military service. As a rationale, the examiner stated that the Veteran alleged he had suffered from severe insomnia since he was in Army boot camp. Also, the medical records from the past few years contained complaints of his inability to sleep, which began during the military service and continued at the same level of severity. In the June 2019 VA examination, the examiner provided conflicting opinions, at one place the examiner opined that the Veteran's diagnosed insomnia disorder at least as likely as not began in service, was caused by service, or was otherwise related to his military service. The examiner further explained that insomnia disorder, per Veteran's credible account, began while he was in boot camp in 1977 and continued with the same severity afterwards. However, in the same examination, the examiner opined that the Veteran's diagnosed insomnia and major depressive disorder were less likely than not to have manifested during service and had not been aggravated by service-connected bilateral hearing loss and tinnitus. For clarifying the conflicting opinions, the Board remanded the matter in November 2019. Consequently, another medical opinion was obtained in January 2020, in which the examiner opined that the Veteran's insomnia disorder was at least as likely as not (50 percent or greater probability) related to his military service. As a rationale, the examiner stated that although there were no service treatment records regarding sleep disturbance, however, since 2009 the Veteran had been consistently reporting having sleep issues, which persisted for decades. The Board notes that the claim remained denied based on lack of in-service complaints or treatment records of insomnia, even after the January 2020 positive nexus opinion linking the Veteran's insomnia with his military service. Whereas, the Board finds that the lack of contemporaneous records does not preclude granting of service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). In its capacity as a finder of fact, the Board finds that the Veteran is credible as to his reports of the onset of insomnia symptoms. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board finds that the Veteran's competent and credible lay evidence, and the January 2020 VA opinion linking his insomnia with his military service are sufficient to establish a nexus between his active service and insomnia. Therefore, service connection for a sleep disability, to include insomnia, is warranted. 38 C.F.R. § 3.303(a). Thereby, following a review of the evidence of record, and after resolving reasonable doubt in favor of the Veteran, the Board concludes that service connection for a sleep disability, to include insomnia, is warranted. The evidence of record reflects current findings of insomnia. The Board has found the Veteran's statements regarding the onset of insomnia symptoms to be competent and credible; and assigned a high probative value to the January 2020 medical opinion linking the Veteran's diagnosed insomnia with his military service. Therefore, entitlement to service connection for a sleep disability, to include insomnia, is granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder and unspecified anxiety disorder, with consideration as secondary to service-connected bilateral hearing loss, tinnitus, and insomnia, is remanded. In a September 2019 VA Form 9, the Veteran stated that all of his medical conditions were inextricably intertwined. At the April 2016 Board's hearing, the Veteran testified that he started having psychiatric problems in service, however, he did not know that it was depression. He stated that was very upset when he read an article regarding racism while he was serving in Germany. He also believed that his depression was due to sleep disturbance during his service. He also asserted that he saw a doctor for his psychiatric problems while he was in service. In November 2019, the Board remanded the matter to obtain a medical opinion on the etiology of the Veteran's psychiatric disorders, to include depression and anxiety disorder. The Board directed the examiner to provide opinion whether the Veteran's service-connected disabilities of hearing loss and tinnitus, and/or non-service-connected sleep disability proximately caused of aggravated any psychiatric disorder. Pursuant to the November 2019 Board's remand, the Veteran was afforded a VA examination and a medical opinion was obtained in January 2020. The examiner diagnosed the Veteran with unspecified depressive disorder and unspecified anxiety disorder. Regarding direct service connection, the examiner opined that the medical record did not support that the Veteran's unspecified depressive disorder and unspecified anxiety disorder were at least as likely as not (50 percent or greater probability) related to service. As a rationale, the examiner stated that the unspecified depressive disorder and unspecified anxiety disorder were considered to be due to the longstanding history of polysubstance abuse, and the numerous negative consequences as a result of substance use (dissolution of marriage, financial problems, loss of housing, feelings of guilt and concerns that he has "ruined" his life), and ongoing symptoms might also be due to limited coping skills. Furthermore, the examiner explained that the Veteran was discharged from the service in 1981, whereas he reported symptoms of anxiety and depression started about 15 years ago. Regarding secondary service connection, the examiner opined that the Veteran's unspecified depressive disorder and unspecified anxiety disorder were not proximately due to or the result of or aggravated beyond natural progression by the service-connected bilateral hearing loss and tinnitus or by non-service-connected insomnia disorder. As a rationale, the examiner stated that unspecified depressive disorder and unspecified anxiety disorder were considered to be due to the longstanding history of polysubstance abuse, and the numerous negative consequences as a result of substance use (dissolution of marriage, financial problems, loss of housing, feelings of guilt and concerns that he has "ruined" his life), and ongoing symptoms might also be due to limited coping skills. The Board finds the above, January 2020, medical opinion inadequate specifically regarding aggravation of psychiatric disorders because the examiner did not provide separate and adequate rationale for it. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The examiner merely stated that unspecified depressive disorder and unspecified anxiety disorder were caused by factors other than service-connected disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The question is whether it is at least as likely as not that the Veteran service-connected disabilities caused (at least in part) or aggravated his psychiatric disorders, in which case it would not matter if polysubstance abuse was the cause of these disorders. Furthermore, the examiner did not discuss the Veteran's contentions that his depression was caused or aggravated by his sleep disturbance during service. Consequently, a remand is warranted to obtain an addendum medical opinion on the etiology of the Veteran's acquired psychiatric disorders, to include unspecified depressive disorder and unspecified anxiety disorder. 2. Entitlement to service connection for a sleep disability other than insomnia, to include sleep apnea, as well as secondary to service-connected bilateral hearing loss, tinnitus and insomnia, and/or non-service-connected acquired psychiatric disorder, with unspecified depressive disorder and unspecified anxiety disorder, is remanded. The Veteran filed a claim of entitlement to service connection for a sleep disability. The Veteran has been diagnosed with severe sleep apnea during July 2018 sleep study. In a September 2019 VA Form 9, the Veteran stated that all of his medical conditions were inextricably intertwined. During the January 2020 VA examination, the examiner noted the diagnosis of sleep apnea, however, did not provide an opinion on the nature and etiology on the Veteran's diagnosed sleep apnea because it was not requested. The Board finds that the Veteran's diagnosed sleep apnea falls within his claim of entitlement to service connection for a sleep disability. Therefore, to allow for the most favorable review of the evidence and the claim, the Board is characterizing the issue as seen above to include issue of sleep apnea. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Hence, the Board concludes that a claim of entitlement to service connection for a sleep disability other than insomnia, to include sleep apnea, has reasonably been raised by the record. Therefore, a remand is warranted for further development and adjudication of the issue at first instance by Agency of Original Jurisdiction. 3. Entitlement to a total disability rating based on individual unemployability ("TDIU") due to service-connected disabilities is remanded. A decision on the remanded issues of acquired psychiatric disorders and sleep apnea could significantly impact a decision on the issue of TDIU because the issues are inextricably intertwined. Hence, an adjudication of TDIU must be deferred and remanded pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Properly consider the Veteran's reasonably raised claim of entitlement to service connection for a sleep disability other than insomnia, to include sleep apnea, with consideration as secondary to service-connected bilateral hearing loss, tinnitus and insomnia, and/or non-service-connected acquired psychiatric disorder, with unspecified depressive disorder and unspecified anxiety disorder; and adjudicate the matter at first instance. Take all necessary steps to complete the adjudication process. 2. Forward the claims file and a copy of this remand to the examiner who rendered the January 2020 opinion, or to an appropriate clinician if the January 2020 examiner is unavailable, to obtain an addendum opinion on the nature and etiology of an acquired psychiatric disorder, to include unspecified depressive disorder and unspecified anxiety disorder. In-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. 3. After reviewing the claims file, the examiner should address the following: (a) Provide an opinion as to whether it is at least as likely as not that an acquired psychiatric disorder, to include unspecified depressive disorder and unspecified anxiety disorder had its onset during the Veteran's period of active service, or related to an in-service injury, event, or disease. (b) Provide an opinion as to whether an acquired psychiatric disorder, to include unspecified depressive disorder and unspecified anxiety disorder, is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by the Veteran's service-connected hearing loss, tinnitus and insomnia. In providing the above opinions, the examiner is advised to address the Veteran's contentions and belief that his medical conditions are inextricably intertwined, and that his insomnia is a factor in causing or aggravating his psychiatric disorders. The examiner is also advised that the question is whether it is at least as likely as not that the Veteran's service-connected disabilities caused (at least in part) or aggravated his psychiatric disorders, in which case it would not matter if polysubstance abuse was the cause of these psychiatric disorders. A complete and separate rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 4. Thereafter, readjudicate the claims on appeal including the issue of TDIU. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.