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Board Erred in Denying Gulf War Vet Service Connection for Insomnia Disorder Based on Pyramiding

Board Erred in Denying Gulf War Vet Service Connection for Insomnia Disorder Based on Pyramiding

Summary of the Case

The Veteran served in the United States Air Force from January 1983 to October 1992. He underwent a Persian Gulf War examination in January 1994 in which he reported that he has experienced insomnia, fatigue, anxiety, and depression since November 1991. He was later diagnosed with major depression, myalgia, and insomnia in September 1995.

The Veteran initially applied for service connection for depression, psychophysiological insomnia, and multiple myalgia in 1997, but was denied service connection by the Regional Office in December of that year. He did not appeal the decision and so it became final. In 2007, he filed a claim for service connection for depression, aching joints, as well as other issues which he attributed to his service in the Persian Gulf. The Regional Office reopened his previous claims for service connection for depression, psychophysiological insomnia disorder, and multiple myalgia, but denied his claims on the merit in May 2008. The Veteran filed a timely Notice of Disagreement with the Regional Office’s denial.

In October 2009, the Regional Office granted the Veteran service connection for fibromyalgia at 40% due to his service in the Persian Gulf. However, the Veteran was denied service connection for his insomnia and depression, stating that granting those claims would be considered pyramiding as the 40% rating for fibromyalgia contemplates symptoms of depression and sleep impairment. The Veteran appealed the issues of service connection for depression and insomnia disorder to the Board of Veterans’ Appeals.

The Board remanded the Veteran’s claim in June 2016 to obtain a VA examination regarding his psychiatric disability to include depression and insomnia. The VA examiner opined that the Veteran’s insomnia disorder was at least as likely as not due to his service-connected fibromyalgia. In May 2017, the Board denied service connection for an acquired psychiatric disability to include insomnia.

 

CCK Successfully Appeals Veteran’s Case to Court

CCK appealed the May 2017 Board denial for service connection for an acquired psychiatric disability to include insomnia disorder to the Court of Appeals for Veterans Claims (CAVC). CCK argued that the Board erred when it conflated the issue of service connection for acquired psychiatric disorder with rating a disability, as pyramiding is only a concern when rating a disability that has been service connected already.

The Court agreed that the Board conflated the issue of service connection with rating, and that the rating is considered a separate issue than service connection. The Court agreed that service connection is a benefit in and of itself, and the issue of pyramiding was only a concern in the analysis of rating a disability.

The Court vacated the Board’s decision and remanded the case back to the Board for readjudication.

Category: Court Wins

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