Citation Nr: 1818313 Decision Date: 03/27/18 Archive Date: 04/04/18 DOCKET NO. 14-32 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether the diagnostic code assigned for insomnia/sleep disturbance is proper. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1988 to August 2009. He served in the Persian Gulf War and in part was awarded a South West Asia Service medal. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for insomnia/ sleep disturbance with 10 percent evaluation under Diagnostic Code 9499-9410. In February 2018, the Veteran testified before the undersigned during a Board hearing held via videoconference. A copy of the hearing transcript has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is service-connected for insomnia under Diagnostic Code 9499-9410. The hyphenated diagnostic code indicates an unlisted disorder under DC 9499 which is rated, by analogy, under the criteria for other specified anxiety disorder. 38 C.F.R. § 4.130, DC 9410; 38 C.F.R. § 4.27 (2017). During the February 2018 Board hearing, the Veteran stated that he has never suffered from a psychiatric disorder. He stated that his insomnia and sleep disturbance were most likely early manifestations of sleep apnea. The Veteran requested that the Diagnostic Code be changed from Diagnostic Code 9499-9410 for insomnia to the Diagnostic Code for sleep apnea. The Veteran stated that he has never suffered from a psychiatric disorder, and such a miswording of his diagnosis in his record hinders his employment prospects. The Veteran was previously denied service connection for sleep apnea by an October 2009 rating decision. The Veteran last appeared for a VA examination in February 2011, which a VA psychiatrist diagnosed insomnia under the DSM-IV. The Veteran has a recent diagnosis of sleep apnea, as reflected in private treatment notes dated November 2017. Earlier treatment records reflect sleep disturbance and possible sleep apnea. In regard to the Veteran's claim that there was misdiagnosis of a psychiatric disorder, the Board finds a clarifying medical opinion is required, to determine the extent to which the Veteran's sleep disturbance is a psychiatric disorder, sleep apnea, and/or an undiagnosed illness, in light of the Veteran's Persian Gulf War service in South West Asia. The examiner will be asked to consider the sleep disorder manifestations from service to present, as the Veteran complained of sleep disturbance from service to present, and the February 2011 VA examiner opined that the Veteran's insomnia began in service. Entitlement to service connection of sleep apnea can be reopened with new and material evidence submitted. However, in regard to the Veteran's contention that he suffers from sleep apnea as relating to service, the Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The Veteran stated that his sleep disturbance has always constituted undiagnosed sleep apnea during the February 2018 Board hearing, after March 24, 2015. As such, the Board cannot refer the claim and the Veteran must file a separate claim for service connection for sleep apnea for consideration. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA clinical records and give the Veteran the opportunity to identify any private treatment records for association with the claims file. All records/responses received must be associated with the claims file. 2. Schedule the Veteran for an appropriate VA examination in regard to his service-connected insomnia/ sleep disturbance. Please review the entire claims file and note that it has been reviewed. The examiner is asked to address: (a) Please determine whether it at least as likely as not (50 percent or greater probability) that the Veteran's insomnia/ sleep disturbance, with manifestations from service to present, is a psychiatric disorder. Please discuss the possibility that the February 2011 VA examination, in which a VA psychiatrist diagnosed insomnia under the DSM-IV, with onset during service, constituted a misdiagnosis. If found, to the extent possible, please determine the date of onset of the Veteran's psychiatric disorder, to include insomnia, manifesting with sleep disturbance. (b) Please determine whether it at least as likely as not (50 percent or greater probability) that the Veteran's insomnia/ sleep disturbance, with manifestations from service to present, constituted sleep apnea, undiagnosed until recently. To the extent possible, please determine the date of onset of the Veteran's sleep apnea. (c) Please also explain the likelihood that a disorder manifesting with insomnia/ sleep disturbance may be attributed to (1) an undiagnosed illness or (2) a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms. If found, to the extent possible, please determine the date of onset of the Veteran's undiagnosed sleep disorder. (d) If there are multiple diagnoses as to insomnia/ sleep disturbance, to the extent possible, please specify which symptoms are attributed to which disorder. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete rationale for any opinion provided. 3. Readjudicate the Veteran's claim of whether the diagnostic code assigned for insomnia/sleep disturbance is proper. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).