Citation Nr: 23025167 Decision Date: 05/02/23 Archive Date: 05/02/23 DOCKET NO. 19-19 439 DATE: May 2, 2023 ORDER Entitlement to service connection for insomnia disorder is granted. REMANDED Entitlement to a compensable evaluation for degenerative arthritis of the right fifth metacarpal status post right fifth metacarpal fracture from January 10, 2017 is remanded. Entitlement to a compensable evaluation for status post right fourth metacarpal fracture from January 10, 2017 is remanded. FINDING OF FACT The weight of the persuasive evidence shows the Veteran's insomnia disorder manifested while in service and has continued to the present. CONCLUSION OF LAW The criteria for entitlement to service connection for insomnia disorder have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1993 to March 2001. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated August 2017 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. The Veteran testified at a November 2022 Board virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been reviewed and associated with the Veteran's claims file. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). 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). If the positive and negative evidence is in approximate balance, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Entitlement to service connection for insomnia disorder The Veteran contends that his insomnia disorder began while in service and has continued to the present. In a May 2019 Form 9, the Veteran wrote that his insomnia disorder started in service and still had not ceased. He wrote that in the past, he had taken medication for insomnia but stopped taking it due to the side effects. In an August 2019 statement, the Veteran's representative wrote that the Veteran's insomnia was diagnosed in service and that he had been prescribed Restoril after separation but discontinued the medication in 2006 due to side effects. In a May 2020 appellate brief, the Veteran's representative wrote that the Veteran was diagnosed with insomnia in 2000 and prescribed Restoril for sleep. In the November 2022 hearing, the Veteran testified that he had had a sleep disorder ever since his military service that continued from service to the present and had been prescribed medication for treatment. The Veteran has a current diagnosis of insomnia disorder, with non-sleep mental disorder comorbidity, persistent. See Mental Disorders Disability Benefits Questionnaire (DBQ) dated August 2017. Thus, the Veteran has satisfied the first prong of service connection, a current disability. Service treatment records (STRs) show that on July 14, 2000, the Veteran complained of not being able to sleep at night for a month and a half. He stated that he remained awake until 3:00 a.m. or 4:00 a.m. He had difficulty falling asleep, but once he was asleep, he was able to stay asleep. A diagnosis of insomnia was provided. In a September 19, 2000 STR, the Veteran marked "yes" to frequent trouble sleeping. He noted that he had anxiety while trying to fall asleep but had a prescription. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection: evidence of an in-service disease or injury. Finally, with respect to the third requirement, a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the Board finds sufficient credible evidence which establishes this nexus. The Veteran underwent a VA examination in August 2017 for mental disorders. The examiner wrote that the Veteran described himself as being a pretty heavy beer drinker. He wrote that the Veteran had had eight to 10 beers the night before and reported this as being typical. The examiner provided, He was diagnosed with insomnia while in the military and treated with medication. He continued medication for another five years after leaving the military. Since leaving the military, [the Veteran] has developed an Alcohol Use Disorder in addition to his insomnia. While it is clear that his insomnia diagnosis predates his excessive ETOH use, it is more likely than not that his insomnia symptoms are currently exacerbated due to his ETOH use. There did appear to be a significant amount of time since leaving the military where ETOH use was not excessive and the insomnia medication was not prescribed. Thus, it is less likely than not that the episode of insomnia [the Veteran] is experiencing today is a continuation of the episode that began in the military. The Board finds the opinion of the August 2017 examiner is not probative because it was based on an inaccurate factual premise. During the examination, the examiner incorrectly stated the amount of the Veteran's alcohol consumption, gave a diagnosis of alcohol use disorder, and concluded that his insomnia symptoms were exacerbated by his alcohol use disorder. However, in a November 2017 Notice of Disagreement (NOD), the Veteran wrote, "Doctor states insomnia due to alcohol. Didn't drink when insomnia started at Ft. Polk, post parachute malfunction. Told him yes, I drink now." Additionally, in a May 2019 Form 9, the Veteran wrote, When I was seen at the VA the doctor asked me of my alcohol habits. I told him I do drink beer, not all the time, but do drink beer. He then told me how alcohol can cause insomnia and I should quit. When insomnia started I didn't drink, now I have beer on occasion and still have insomnia. The doctor was blaming it on beer consumption, when it clearly shows it started long ago when I didn't drink and persists now when drink occasionally. In an August 2019 statement, the Veteran's representative wrote, "Our Veteran does not have an alcohol addiction, merely an occasional drink. This is not the underlying cause of his insomnia." At the November 2022 hearing, the Veteran testified that the August 2017 examiner said that the Veteran was a heavy drinker, but he had never been a heavy drinker and only drank on occasion. He had never missed work or called in sick due to the effects of alcohol, used alcohol to help him sleep, been diagnosed with alcohol use disorder, been hospitalized with alcohol use disorder, or lost consciousness because of alcohol. The Veteran stated that the August 2017 examination was only a brief conversation and that the examiner's report that he had had 8 to 10 drinks the night before was false and that this was not his normal intake. He also reported that he had never been diagnosed with alcohol use disorder outside of this examination. The August 2017 VA examination appears to have been based on an inaccurate factual premise. A medical opinion based on an inaccurate or incomplete factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the opinion of the August 2017 VA examiner is not probative for nexus purposes. The Board does, however, find that the examiner accurately discussed the evidence in the Veteran's STRs and the fact that his insomnia disorder manifested while in service and has continued to the present. In this regard, the examiner provided that while in the military the Veteran had periods of insomnia. He also wrote, He did report sleep issues as far back as 2000 (while in the military). Service treatment records note in part, "24-year-old male complains of not being able to sleep at night for a month and a half...States he remains awake until 0300 to 0400..." At that time, he was diagnosed with insomnia and prescribed Restoril. After leaving the military, [his] sleep issues continued. He reported that his first post-military employer...continued his prescription for Restoril until 2006. At that time, [he] stopped the medication for two reasons. Firstly, he was starting work at the fire department and secondly, he was concerned about the habit-forming properties of the medication. The examiner also wrote that the Veteran was "diagnosed with insomnia while in the military and treated with medication. He continued medication for another five years after leaving the military." The Board accepts the August 2017 examiner's presentation of these facts as they are accurate and supported by the STRs. Further, these symptoms are consistent with post service records showing a continued history of treatment for insomnia disorder. There is no probative evidence to the contrary. The Board also finds that the Veteran's testimony is competent, credible, and very probative. The Veteran is competent and credible to report the insomnia symptoms that he experienced thereafter were the same as during his active duty service. His lay evidence is probative to establish these symptoms of insomnia disorder in service, and to show that the symptoms have remained consistent to the present. Lay evidence is competent and sufficient to establish etiology when 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, 1376-77 (Fed. Cir. 2007). Here, the lay evidence of the Veteran describes symptoms during service that were diagnosed as insomnia by a medical professional while he was in service. This is probative nexus evidence in favor of the Veteran's claim. The Board finds that the Veteran continued to experience the same symptoms from service to the present. The Veteran is competent and credible to report the treatment and diagnosis he received in service and that he has experienced insomnia disorder from the time of his service to the present. In this case, the Board finds the evidence establishes that the Veteran's insomnia disorder manifested while in service and has continued to the present. The Veteran's reported histories of consistent insomnia disorder are internally consistent, credible, and supported by the STRs and post-service records. The Veteran has credibly and competently reported that his insomnia disorder began while he was in service and has continued to the present. Thus, the Board finds that service connection for insomnia disorder is granted. REASONS FOR REMAND 2. Entitlement to a compensable evaluation for degenerative arthritis of the right fifth metacarpal status post right fifth metacarpal fracture from January 10, 2017 is remanded. 3. Entitlement to a compensable evaluation for status post right fourth metacarpal fracture from January 10, 2017 is remanded. In the November 2022 hearing, the Veteran testified that he had decreased range of motion in his fourth and fifth fingers. He also had difficulty touching his thumb pad to his fourth and fifth fingers. When he tried to do this, his fingers started curling and he had a lot of pain throughout the back of his hand. If he tried to touch his pinky, all of his fingers curled. He had stiffening in the joints and some immobility as far as flexion. The more he used his hand, the more pain and difficulty he experienced. He was unable to kayak because his hand would go completely numb, tingle, and become painful. He had to shake out his hand before being able to use it again. He also could not use a screwdriver. He currently worked as a firefighter and had difficulty using an ax. He was typically able to do a few swings but then had to stop and switch hands. He also had difficulty using chainsaws and other similar tools. He stated that he had pain, weakness, and incoordination that limited his ability with repeated use. His pain, weakness, and fatigue significantly limited his functional ability during flareups. He stated that he experienced flareups when he was unable to use his fingers. He believed that he was overcompensating using his first and second fingers to make up for his lack of ability with the fourth and fifth fingers. He had trouble with grip strength, including writing with a pencil or picking up a suitcase. His disabilities were worse with cold weather. They instantly went numb when he went outside. The Veteran testified that his last examination indicated that he did not have a gap between his thumb and fingers. However, during the hearing, he showed that he now had a gap between his thumb and fingers. As the Veteran has stated that his degenerative arthritis of the right fifth metacarpal status post right fifth metacarpal fracture and status post right fourth metacarpal fracture have worsened since his last examination, the Veteran should be provided a new VA examination to ascertain the current severity and manifestations of the disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected disabilities of the right fourth and fifth fingers. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.