Citation Nr: 23014732 Decision Date: 03/10/23 Archive Date: 03/10/23 DOCKET NO. 16-22 733 DATE: March 10, 2023 ORDER Entitlement to an acquired psychiatric disability, diagnosed as insomnia, is granted. FINDING OF FACT The evidence is in approximate balance regarding whether the Veteran's current acquired psychiatric disability, diagnosed as insomnia, is related to his active service, and therefore the benefit of the doubt is resolved in favor of the Veteran. CONCLUSION OF LAW The criteria for an acquired psychiatric disability, diagnosed as insomnia, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to January 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in December 2018 for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). 1. An Acquired Psychiatric Disability, Diagnosed as Insomnia The Board concludes that the Veteran has a current diagnosis of insomnia that is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In a December 2022 VA examination, the Veteran was diagnosed with insomnia. The Veteran asserted that his in-service stressors included: spending time in prison for second-degree murder; being the victim of guard attacks while in prison; being beaten in service; and serving in the Korean Demilitarized Zone (DMZ). The Board notes that the service personnel records (SPRs) corroborate that the Veteran served in the Korean DMZ and has been awarded service connection for various disabilities based on his presumptive exposure to herbicides. Therefore, the Veteran's service in the DMZ is verified. SPRs also demonstrate the Veteran served in Korea from April 1968 to May 1969. Service treatment records (STRs) additionally reflect that he was convicted by a plea of guilty of second-degree murder in April 1973 while on active duty. STRs also demonstrate the Veteran was treated with sutures in his face as the result of multiple lacerations to the face from a beer bottle. Therefore, the Board finds that the Veteran's statements regarding his spending time in prison in service and serving along the Korean DMZ, consistent with a fear of hostile military or terrorist activity, are competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). Additionally, STRs demonstrating treatment for lacerations to the face from a beer bottle are competent and credible evidence of a personal assault in service. Id. In a December 2022 VA examination, the Veteran was diagnosed with insomnia and the VA examiner found that it was at least as likely as not that insomnia was related to in-service events. He explained in his rationale that the Veteran identified stressors do not elicit symptoms associated with PTSD as identified as in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5) and that the only symptoms noted on exam were "sleep difficulties/impairment." The VA examiner noted that chronic sleep impairment was consistently reported in all evaluations and that earlier evaluations also noted sleep impairment was often associated with military experience. As noted above, the Board has found several of the Veteran's reported in-service incidents are supported by his SPRs and STRs. Taken together, the Veteran's service information and the findings in the December 2022 VA examination, at the very least, place the evidence in a state of relative equipoise as to whether a nexus exists between the currently insomnia and his active service. Although the VA and private treatment records reflect treatment and diagnoses of posttraumatic stress disorder (PTSD), major depression and dysthymic disorder, the Board observes that PTSD has not been diagnosed as it relates to a verified in-service stressor, and there is no probative medical or lay evidence providing a nexus between major depression or dysthymia and the Veteran's active service. In a November 2011 VA examination, the Veteran was diagnosed with depressive disorder, not otherwise specified (NOS), and the VA examiner found the Veteran did not meet the criteria for PTSD. The VA examiner opined that it was less likely than not that the Veteran's depressive disorder NOS was related to his conceded stressor of a fear of hostile military or terrorist activity. He explained that the Veteran was discharged from active service in 1974 and he reported he did not seek subsequent mental health treatment until 2010. The VA examiner then noted the Veteran had a number of factors following his military service that likely contributed to the depression, including separating from his wife, several previous divorces, unemployment and financial stress. In February 2013, a VA examiner reviewed the record and provided additional medical opinions. She found the Veteran did not meet the criteria for PTSD. The VA examiner noted that, being exposed to a stressor did not mean that the subjective experience met the criteria for PTSD, noting a veteran's symptoms must meet frequency and intensity anchors in all criteria and must result in significant social and occupational functioning or other important areas of functioning. She then noted that a nexus must link the symptoms to the alleged stressor and not linked to intercurrent stressors or be confounded by other mental health symptoms or disorders. She found that it would be speculative to explain the discrepancy between VA examinations and diagnoses of PTSD by VA treatment providers. The VA examiner then explained that usually such a discrepancy was due to the differences between a clinical evaluation done for treatment purposes and a forensic evaluation, such as a VA examination, conducted for a legal purpose. She noted that forensic evaluators, such as VA examiners, had access to more sources of information, had more time to review pertinent VA and private treatment records, were able to conduct objective testing, were able to conduct structured diagnostic interviews, and did not have to worry about the impact of their diagnoses on the therapeutic alliance, and forensic evaluators extensively scrutinized self-reported symptoms and etiological assumptions. The VA examiner who provided the February 2013 VA medical opinions also found it was less likely than not that depressive disorder was related to personal trauma to the right face/neck in an assault that occurred in October 1969. She cited to the rationale in the previous VA examination in support of this opinion, noting that the Veteran was discharged from active service in 1974, he reported that he did not seek subsequent mental health treatment until 2010 and she noted that he had a number of factors following his military service that likely contributed to the depression, including separating from his wife, several previous divorces, unemployment and financial stress. The December 2022 VA examiner found the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD and he noted in his opinion that the Veteran denied any symptoms causing impairment in his current life. The VA examiner also noted that an earlier forensic evaluation did indicate the presence of PTSD; however, these symptoms and description were not revealed in the present evaluation. He also found that prior VA examination noted the Veteran's reported symptoms consisted of chronic sleep impairment and that the VA treatment reports which diagnosed PTSD were based on current stressors and not based upon any stressors reported from his active service. The VA examiner found that what was most notable in current evaluation was that the Veteran's identified stressors did not elicit symptoms associated with PTSD as identified in DSM-5 criteria and the Veteran had denied an effect of his military experience on his current daily functioning. The November 2011, February 2013 and December 2022 VA examiners' opinions are probative because they were based on an accurate medical history, including the Veteran's reports of symptoms and treatment, cited to relevant medical literature, addressed the Veteran's contentions, are supported by the medical evidence of record and provided explanations that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board affords more probative value to these VA medical opinions finding no diagnosis of PTSD and no nexus between depression or dysthymia and the Veteran's active service, including any reported incident or injuries in service. Therefore, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability, diagnosed as insomnia, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.