Citation Nr: 21042745 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-32 682 DATE: July 13, 2021 ORDER Entitlement to service connection for insomnia and hypersomnia, as secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD) with depression, is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT There is probative evidence of record attributing the Veteran's insomnia and hypersomnia to her service-connected PTSD with depression. CONCLUSION OF LAW The criteria for service connection for insomnia and hypersomnia as secondary to service-connected PTSD with depression have been met. 38 U.S.C. §§ 1110, 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 from January 1978 to March 1982 and from December 2002 to March 2004. Evidence affiliated with the claims file reflects that the Veteran also served in the Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via a virtual hearing in June 2021. 1. Insomnia and Hypersomnia Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent medical or lay evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury may be service connected. 38 C.F.R. § 3.310(a). Establishing secondary service connection requires competent medical or lay evidence of: (1) a current disability that is not already service connected; (2) at least one service-connected disability; and (3) a nexus between the current disability and the service-connected disability, showing that the current disability was either proximately due to or the result of the service-connected disability or that the current disability was aggravated (increased in severity) beyond its natural progression by the service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's medical records indicate that she has been diagnosed with both insomnia and hypersomnia. See April 2015 VA Pulmonary Diagnostic Study Consult Note. The Veteran is service-connected for PTSD with depression. See April 2015 Rating Decision. The Board notes that the Veteran was examined for her sleep disturbances in April 2015, at which time the examiner concluded that although the Veteran's diagnosed insomnia and hypersomnia were less likely than not related to her active service, they were at least as likely as not causally linked to her service-connected psychiatric condition. The examiner reasoned that "PTSD and MDD patients commonly experience sleep disturbances." The Board finds that the probative evidence of record etiologically relates the Veteran's current insomnia and hypersomnia to her service-connected PTSD with depression. The April 2015 opinion is based on review of the medical evidence and literature in addition to an examination of the Veteran. Therefore, the Board finds that service connection for insomnia and hypersomnia is warranted as secondary to the Veteran's service-connected PTSD with depression. See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS FOR REMAND 1. Sleep Apnea First, the Board acknowledges that the Veteran's April 2015 examination reflects that the study was not consistent with sleep apnea. See April 2015 VA Pulmonary Diagnostic Study Consult. However, the Veteran stated that she would be undergoing an additional sleep study. To date, no records of said additional sleep study have been provided. Furthermore, the Veteran's updated medical records regarding sleep apnea have not been obtained. On remand, the Board requests that the Veteran's updated and/or outstanding VA and/or private medical records be obtained and associated with the claims file. Second, the Board notes that there is evidence in the claims file indicating that the Veteran served in the Reserve. Even though there are some service treatment records and service personnel records associated with the claims file revealing the Veteran's education, performance, assignments, points, and awards, the precise dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the Agency of Original Jurisdiction (AOJ) should confirm the Veteran's periods of ACDUTRA and INACDUTRA. As the Board is requesting these dates be verified, the Board also acknowledges the possibility and probability that the Veteran's treatment records during ACDUTRA could reflect manifestations of symptomatology related to the Veteran's sleep apnea. Thus, the Board not only requests the Veteran's service treatment records throughout her periods of ACDUTRA and INACDUTRA be obtained and associated with the claims file, but also an opinion as to whether the Veteran's sleep apnea is the result of her ACDUTRA. Additionally, the Veteran was noted to be overweight during service. See June 1977 Report of Medical Examination; August 1977 Service Treatment Record; February 1982 Report of Medical Examination; June 1982 Consultation Sheet. Due to the Veteran's in-service treatment for being overweight, the theory of whether obesity constitutes an intermediate step for secondary service connection is raised. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018) (obesity itself is not subject to service connection); VAOPGCPREC 1-2017 (Jan. 6, 2017) (obesity can be an "intermediate step" between a current disability and a service-connected disability under certain circumstances). An addendum opinion is needed. Finally, the grant of insomnia and hypersomnia in this decision raises the theory of entitlement to service connection for sleep apnea as secondary to the Veteran's now service-connected insomnia and hypersomnia. Consequently, the Board finds that an addendum opinion as to the nature and etiology of the Veteran's sleep apnea must be associated with the claims file. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran's award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA, must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All outstanding medical treatment records associated with the Veteran's Reserve service, if not previously obtained, should also be affiliated with the claims file. 2. Request the Veteran to identify any and all updated and/or outstanding VA and/or private medical records relating to her treatment for sleep apnea. Appropriate efforts must be made to obtain these records if she has adequately identified them and authorized their release (with respect to any private medical records). She should also be invited to submit these records herself. All actions to obtain the requested records should be documented in the claims file. If they cannot be located or no such records exist, the Veteran and her representative should be so notified in writing. 3. Then, forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of the Veteran's sleep apnea. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be obtained. (a) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's sleep apnea manifested during, or is the result of, her active duty service and/or ACDUTRA. (b) The clinician should opine if the Veteran's sleep apnea constitutes a medically unexplained chronic multisymptom illness (MUCMI) based on the Veteran's symptoms. The clinician is advised that an illness is a MUCMI whether either the etiology of the pathophysiology of the illness is inconclusive. Conversely, a multisymptom illness is not a MUCMI whether both the etiology and the pathophysiology of the illness are partially understood. (c) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's sleep apnea was either (i) caused or (ii) aggravated by her service-connected disabilities, to include hypertension, PTSD with depression, and/or insomnia and hypersomnia. (1) The clinician should also opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's being overweight/obesity was an intermediate step between her service-connected disabilities and her sleep apnea. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's VA medical records; (iii) The Veteran's private medical records; and (iv) The Veteran's competent lay statements as to her first-hand in-service experiences and the onset and continuity of her symptomatology. If the clinician determines that the Veteran's sleep apnea is less likely than not due to her active service and/or ACDUTRA, less likely than not a MUCMI, less likely than not due to an intermediate step involving her obesity, and/or less likely than not caused and/or aggravated by her service-connected disabilities, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should explain the specific etiology of the Veteran's sleep apnea. A complete rationale must be provided for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Seserman 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.