Citation Nr: 21030642 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-01 957 DATE: May 19, 2021 ORDER Entitlement to service connection for insomnia disorder is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The preponderance of the evidence is at least in equipoise as to whether the Veteran's insomnia disorder is proximately due to/aggravated beyond its natural progression by his service-connected conditions. CONCLUSION OF LAW The criteria for entitlement to service connection for insomnia disorder as secondary to service-connected conditions have been 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 served on active duty from December 1968 to December 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by a VA Regional Office (RO). The Board previously remanded the Veteran's claims in May 2018 for further development. Specifically, the Board requested new VA examinations in order to ascertain the current nature and etiology of the Veteran's sleep apnea and posttraumatic stress disorder including any other psychiatric disorders. See Clemons v. Shinseki, 23Vet. App.1 (2009), see also McLendon v. Nicholson, 20Vet. App.79 (2006). A review of the claims file now shows that there has been substantial compliance with the Board's remand directives as it pertains to the Veteran's acquired psychiatric disability claim. See Stegall v. West, 11 Vet. App. 268 (1998). However, as will be discussed below, the resulting opinion concerning the Veteran's claim of service connection for OSA was not responsive to the Board's directive and, therefore, further remand is required. Id. The Board notes, subsequent to the prior remand, the RO in an April 2020 rating decision, granted service-connection for major depressive disorder (MDD) with features of posttraumatic stress disorder (PTSD) effective July 20, 2010. This is considered a complete grant of the benefit sought on appeal with respect to that issue and, thus, is no longer before the Board and the Veteran does not contend otherwise. However, the Veteran's representative has recently argued in an appellate brief dated in March 2021, that the initial disability rating assigned to the Veteran's MDD should be increased. Unfortunately, as the Veteran has not filed a notice of disagreement or claim for increased rating for his MDD, this claim is not now before the Board and therefore will not be further addressed. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for insomnia disorder is granted. Generally, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). Here, the Veteran contends that his various psychiatric conditions, to include his recently diagnosed insomnia disorder, were caused or aggravated by his various service-connected conditions. At the outset, the Board notes that the Veteran is currently diagnosed with insomnia disorder, MDD, and PTSD. See October 2019 VA examination. He is also currently service-connected for MDD with features of PTSD, total bilateral knee replacement, lumbar spine degenerative arthritis, peptic ulcer disease, bilateral tinnitus, cervical strain, radiculopathy of the left lower extremity, hearing loss, and forehead scars. Therefore, the remaining question before the Board is whether or not the Veteran's insomnia disorder was caused or aggravated by one or more of his service-connected conditions. The Board finds that the preponderance of the evidence indicates that the Veteran's insomnia disorder is proximately due to or aggravated beyond its natural progression by his service-connected conditions. Turning to the evidence of record, the Veteran's service treatment records (STRs) do not contain reports of treatment, diagnosis, or complaints for insomnia. However, the Veteran has consistently reported that he began experiencing sleeping issues during and since service. The Veteran was afforded a VA examination in October 2019 which formally diagnosed him with insomnia disorder. The examiner ultimately opined that the Veteran's condition is "at least as likely as not proximately due to or the result of the Veteran's [service-connected] disabilities". She explained that "according to DSM V, insomnia is a common comorbidity for many medical conditions, particularly those involving chronic pain". She further explained, that "individuals with insomnia frequently have a comorbid mental disorder". In addition, the examiner noted that insomnia represents a risk factor or an early symptom of subsequent depressive disorders". The Board finds the October 2019 VA medical opinion to be probative for it not only provided a clear conclusion but provided a through rationale. The examiner thoroughly considered the claims file, cited supporting medical diagnostic criteria and gave due consideration to the Veteran's lay statements in developing her opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's claim for entitlement to service connection for insomnia disorder, secondary to his service-connected disabilities, is granted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Veteran contends that his OSA began during service and has experienced symptoms ever since. Alternatively, the Veteran has recently asserted that his OSA was caused or aggravated by his service-connected conditions, specifically major depressive disorder (MDD). In connection with his claim, VA afforded him a VA examination in October 2019 and an addendum medical opinion in May 2020. The examiner confirmed the Veteran's current diagnosis of OSA and noted that his STRs did not document "the presence of snoring, sleep problems or apnea during sleep in the time of service". She further noted that the first mention of such symptoms occurred in an October 2010 polysomnogram in VA treatment records noting the presence of moderate OSA. The examiner ultimately opined that the Veteran's current OSA "is less likely than not incurred in or caused by the sleep apnea during service because no documentation of sleep apnea during active duty could be found". Unfortunately, the Board finds that further AOJ action on the claim for service connection for OSA is warranted, even though such will, regrettably, further delay an appellate decision on this matter. The Board finds the VA examiner's opinion inadequate. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007), see also Stegall v. West, 11 Vet. App. 268, 271(1998). Here, the May 2020 VA examiner failed to provide any rationale for the negative nexus opinion other than the absence of evidence in medical records. In this regard, medical examiners may not rely on the absence of medical records to conclude no relationship exists between the claimant's current disability and their military service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the Board notes that for the very first time in March 2021, the Veteran asserted a secondary theory of entitlement to service connection for his claim for OSA. Specifically, that his now service connected MDD with features of PTSD caused or aggravated his OSA. Prior to the March 2021 Informal Hearing Presentation (IHP), the Veteran's sole contention was based on a direct theory of entitlement asserting that his OSA had its' onset in service and that he has continually experienced symptoms ever since. The VA medical examinations and opinions of record have never addressed causation and aggravation as it pertains to a secondary theory of entitlement to service connection for OSA. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). As such, the Board finds the evidence of record does not contain sufficient information to render a decision. Therefore, a VA medical opinion which addresses both causation and aggravation should be sought upon remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an addendum medical opinion by an appropriate examiner to determine the nature and etiology of the Veteran's obstructive sleep apnea (OSA). After thorough review of the claims file, the VA examiner should provide an opinion, with complete rationale, to the following questions: (a) Whether the Veteran's OSA is "at least as likely as not" related to service, to include Veteran's reports of onset during service. The examiner is cautioned that the rationale for any negative nexus opinion may not rely on the absence of medical records to conclude no relationship exists between the Veteran's current disability and their military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (b) If not, whether the Veteran's OSA is "at least as likely as not" caused or aggravated by his service-connected conditions, including major depressive disorder. The examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310 (b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, 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.