CHRONIC SLEEP IMPAIRMENT

Summary

The veteran, who served from January 1966 to June 1966, appeals a December 2025 rating decision. The veteran sought service connection for insomnia and an increased rating for depression, as well as special monthly compensation (SMC) at the housebound rate and an earlier effective date for insomnia. The Board granted service connection for insomnia separately from the back disability, awarding a 70 percent rating prior to June 2, 2016. For the period from June 2, 2016, onwards, the Board granted service connection for depression with insomnia, also at a 70 percent rating, finding the symptoms could not be distinguished and were properly rated together. The Board granted SMC at the housebound rate from October 26, 2011, to June 2, 2016, based on the 100 percent rating for the lumbar spine and the granted 70 percent rating for insomnia. The Board denied an earlier effective date for insomnia, finding no claim was reasonably raised prior to October 26, 2011, despite the veteran's discussion of sleep difficulties in earlier correspondence. The Board remanded the issue of entitlement to SMC based on the need for aid and attendance prior to August 14, 2017, for an examination to determine the level of assistance required during that period.

Rationale

AOJ improperly combined rating for insomnia with lumbar spine disability.; Insomnia is a psychological disorder, rated separately from spine.; Symptoms of insomnia and depression were indistinguishable from June 2, 2016.; Veteran's insomnia manifested in deficiencies in most areas, including suicidal ideation, warranting 70% rating.

Full Decision Text

Citation Nr: A26040362
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 260106-626893
DATE: April 29, 2026

ORDER

Entitlement to a separate evaluation of 70 percent, but no higher, for insomnia prior to June 2, 2016 is granted.

Entitlement to an evaluation of 70 percent, but no higher, for depression with insomnia from June 2, 2016 is granted.

Entitlement to special monthly compensation (SMC) at the housebound rate from October 26, 2011 to June 2, 2016 is granted. 

Entitlement to an effective date prior to October 26, 2011 for the grant of service connection for insomnia is denied.

REMANDED

Entitlement to SMC based on the need for aid and attendance prior to August 14, 2017 is remanded.

FINDINGS OF FACT

1. After resolving reasonable doubt in the Veteran's favor, since October 26, 2011, his insomnia manifested in occupational and social impairment with deficiencies in most areas, with symptoms including suicidal ideation.

2. For the period from October 26, 2011 to June 2, 2016, the Veteran has one service-connected disability rated at 100 percent, with additional disability rated at least at 60 percent.

3. As of October 26, 2011, there was no pending claim of service connection for insomnia, including a formal claim, an informal claim, or a reasonably raised claim raised during an ongoing claim of an increased rating for the Veteran's service-connected back disability, which had remained pending since February 9, 1972. The Veteran did not express an intent to seek benefits related to insomnia prior to October 26, 2011.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a separate evaluation of 70 percent, but no higher, for insomnia prior to June 2, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (2024); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9421 (2025).

2. The criteria for entitlement to an evaluation of 70 percent, but no higher, for depression with insomnia have been met. 38 U.S.C. §§ 1155, 5107 (2024); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Code 9434 (2025).

3. The criteria for entitlement to SMC at the housebound rate from October 26, 2011 to June 2, 2016 have been met. 38 U.S.C. §§ 1114(s), 5107 (2024); 38 C.F.R. §§ 3.102, 3.350(i) (2024).

4. The criteria for entitlement to an effective date prior to October 26, 2011 for the grant of service connection for insomnia have not been met. 38 U.S.C. §§ 5101, 5110 (2018, 2024); 38 C.F.R. §§ 3.1, 3.155 (2014, 2018, 2025), 3.400 (2025).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty for training from January 1966 to June 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2025 rating decision by the Department of Veterans Affairs (VA).

In the January 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for
 (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. 

The Board must consider entitlement to SMC when fairly raised by the record. See Akles v. Derwinski, 1 Vet. App. 118 (1991). The issue of entitlement to SMC at the housebound rate has been raised by the record in the context of the grant of a 70 percent evaluation for insomnia prior to June 2, 2016. Additionally, although SMC based on the need for aid and attendance was granted for part of the review period before the Board, see September 2018 rating decision, the matter was nonetheless raised. See, e.g., May 2018 correspondence. The Board has accordingly added entitlement to SMC as issues on appeal.

The Board notes that the matter of entitlement to a TDIU is moot because the Veteran is in receipt of a combined rating of 100 percent and SMC at the housebound rate throughout the review period. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). 

The Veteran waived the requirement that the Board delay issuing a decision until the period to request to switch dockets elapses pursuant to Williams v. McDonough, 37?Vet. App.?305 (2024). See January 2026 correspondence. Thus, the Board will proceed with adjudication.

1. Entitlement to a separate evaluation for insomnia.

When the AOJ originally granted service connection for insomnia, the AOJ rated the disability with the Veteran's previously service-connected depression and assigned a rating of 70 percent for both disabilities. See July 2023 rating decision. On its own initiative, in the rating decision on appeal, the AOJ found that it was clear and unmistakable error to rate the Veteran's insomnia with his depression instead of his back disability. Thus, the AOJ rated the Veteran's insomnia as part of his back disability, already rated at 100 percent, and decreased the rating for depression to 10 percent, effective June 2, 2016. The Veteran challenged the AOJ's finding that insomnia was not entitled to an evaluation separate from the back. See January 2026 Notice of Disagreement.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Separate Evaluation for Insomnia

The AOJ improperly combined the rating for insomnia with the Veteran's lumbar spine disability. Insomnia is a psychological disorder and the rating criteria for the spine do not contemplate psychological symptoms. See 38 C.F.R. § 4.71a. As a result, the Veteran's insomnia is properly rated separately from his back disability.

Effective June 2, 2016, the Veteran is granted service connection for depression. There is
 findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Separate Evaluation for Insomnia

The AOJ improperly combined the rating for insomnia with the Veteran's lumbar spine disability. Insomnia is a psychological disorder and the rating criteria for the spine do not contemplate psychological symptoms. See 38 C.F.R. § 4.71a. As a result, the Veteran's insomnia is properly rated separately from his back disability.

Effective June 2, 2016, the Veteran is granted service connection for depression. There is no competent evidence that the symptoms from the Veteran's insomnia and depression can be distinguished. Indeed, a March 2023 VA examination diagnosed only insomnia and included depressed mood as a symptom. As a result, the disabilities are properly rated together, effective June 2, 2016.

In sum, a separate evaluation for insomnia alone is warranted prior to June 2, 2016. An evaluation separate from the back is warranted from June 2, 2016, but the disability is properly evaluated with depression from that date.

Proper Evaluation

The Veteran's insomnia is properly rated pursuant to Code 9421 prior to June 2, 2016 and pursuant to Code 9434, for major depressive disorder, thereafter. Regardless of the specific Code applied, the criteria for both Codes are found in the General Rating Formula for Mental Disorders (General Formula). A noncompensable rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130.

A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Id.

A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). This may be due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and/or mild memory loss (such as forgetting names, directions, recent events). Id.

A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id.

A 100 percent evaluation is warranted for total occupational and social impairment. This may be due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.

The list of symptoms in the General Formula is not intended to constitute an exhaustive list, but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment,
 list of symptoms in the General Formula is not intended to constitute an exhaustive list, but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126.

As relevant to this case, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court of Appeals for Veterans Claims' (Court's) holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns the GAF scores mentioned in the record no probative value, and will not discuss them specifically. See also Golden v. Shulkin, 29 Vet, App. 221 (2018).

In March 2017, the Veteran reported that he persistently felt hopeless at times. He sometimes wished for death. He stated he was socially isolated and withdrawn, no longer being active in his community. He reported memory loss, difficulty establishing and maintaining relationships, and disturbances of motivation and mood. He stated that it was hard for him to adapt to stressful circumstances and that he felt worthless. He reported continuous depression. His wife was his sole support system and assisted the Veteran with performing daily living tasks. It was difficult for the Veteran to shower because of his legs. See statement.

In February 2019, a private physician opined that the Veteran's insomnia, along with physical symptoms, enveloped him in a mental fog that caused cognitive dysfunction. See private opinion.

During the March 2023 VA examination, the Veteran reported that he no longer engaged in things he used to enjoy. His son attended the examination with him and reported that relationships with family members and social interactions were significantly impacted and that his father just wanted to sleep due to chronic fatigue from lack of sleep. The Veteran reported that he had trouble falling and staying asleep. He reported that his lack of sleep and fatigue impacted his ability to understand complex directions, and caused forgetfulness, lack of attention, and lack of balance. He stated he was irritated easily and that his wife would get angry with him sometimes. He reported chronic pain throughout the day that limited his ability to perform daily functioning and work effectively. The pain caused him to not want to engage in activities or socialize with people. Bathing and hygiene had become an issue, and the Veteran's son reported that the Veteran sometimes bathed only once a week.

The VA examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas. Symptoms included: depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; impaired impulse control, such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.

After considering the probative evidence of record, the Board finds that the Veteran's insomnia, including when considered with his service-connected depression from June 2, 2016, manifested in occupational and social impairment with deficiencies in most areas. Notably, the Veteran reported suicidal ideations in March 2017 and the VA examiner opined that the Veteran's occupational and social impairment reflected major deficiencies. Given the absence of evidence for the earlier part of the review period, the Board will resolve reasonable doubt in the Veteran's favor and find that he had such ideations and prior to his statement. Thus, his impairment was present throughout the review period, and a 70 percent evaluation is warranted.

The Board finds that the Veteran's
 of minimal personal hygiene.

After considering the probative evidence of record, the Board finds that the Veteran's insomnia, including when considered with his service-connected depression from June 2, 2016, manifested in occupational and social impairment with deficiencies in most areas. Notably, the Veteran reported suicidal ideations in March 2017 and the VA examiner opined that the Veteran's occupational and social impairment reflected major deficiencies. Given the absence of evidence for the earlier part of the review period, the Board will resolve reasonable doubt in the Veteran's favor and find that he had such ideations and prior to his statement. Thus, his impairment was present throughout the review period, and a 70 percent evaluation is warranted.

The Board finds that the Veteran's insomnia, including when considered with his service-connected depression from June 2, 2016, did not manifest in total occupational and social impairment. The Board acknowledges that the Veteran had difficulty with activities of daily living and that the VA examiner noted such symptoms. However, as reflected in the Veteran's own lay statement, his chronic pain from other physical disabilities appears to be the main cause of such impairment. Although he reported that he did not bathe frequently, he reported that it was due to his legs rather than his psychological disorder. Moreover, the examiner also discussed that the Veteran's chronic pain impacted his ability to perform daily functioning and work effectively, indicating that the cause of such impairment is primarily due to the Veteran's service-connected physical disabilities rather than his psychological disorder, which is consistent with the Veteran's lay statement. Thus, the Board finds that the Veteran's lay statement regarding the cause of his hygiene difficulties outweighs the finding by the March 2023 VA examiner that the Veteran's insomnia symptoms included neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living such that the evidence does not rise to total occupational and social impairment.

Additionally, the Veteran appears to have a strong relationship with his spouse, identifying her as his sole support system, despite her sometimes getting angry with him. As noted above, his son attended his VA examination with him. Such evidence reflects that the Veteran has strong family relationships, even if they can be strained at times. Any social impairment with the Veteran's family relationships is compensated by his 70 percent rating. 

Finally, although the record reflects some cognitive impairment and memory loss, the preponderance of the evidence weighs against finding that the Veteran's cognitive impairment rises to a level such that he is totally impaired in an occupational and social setting. His worst symptoms appear to be forgetting complex directions and being forgetful, which are compensated by his 70 percent rating. The Board notes also that the Veteran, who is not represented, has maintained significant attention to detail and logical reasoning, as demonstrated by his frequently submitted complex legal arguments with his various appeals, including this appeal, wherein he also thoroughly discussed the facts of his case. See, e.g., April 2024 correspondence. For these reasons, the Board finds that the Veteran's psychological symptoms do not rise to the level of impairment contemplated by a 100 percent evaluation, and such evaluation is denied.

2. Entitlement to SMC at the housebound rate from October 26, 2011 to June 2, 2016.

SMC at the housebound rate is payable if a veteran has a single service-connected disability rated at 100 percent and has an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 

Here, the Veteran's lumbar spine disability is rated at 100 percent during the review period. As a result of the Board's grant herein, his insomnia is rated at 70 percent. Thus, the Veteran meets the criteria for SMC at the housebound rate from October 26, 2011 to June 2, 2016, and the matter is granted.

3. Entitlement to an effective date prior to October 26, 2011 for the grant of service connection for insomnia.

The Veteran asserts that he is entitled to an effective date of February 9, 1972 for the grant of service connection for insomnia because he raised a claim of service connection for insomnia secondary to his service-connected back disability during an ongoing appeal that remained pending since February 9, 1972 and his insomnia first manifested as of that date. The Veteran cited to Bailey v. Wilkie, 33 Vet. App. 188 (2021), and 38 C.F.R. § 3.155(d)(2) in support of his assertion. See, e.g., January 2026 correspondence.

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of
 asserts that he is entitled to an effective date of February 9, 1972 for the grant of service connection for insomnia because he raised a claim of service connection for insomnia secondary to his service-connected back disability during an ongoing appeal that remained pending since February 9, 1972 and his insomnia first manifested as of that date. The Veteran cited to Bailey v. Wilkie, 33 Vet. App. 188 (2021), and 38 C.F.R. § 3.155(d)(2) in support of his assertion. See, e.g., January 2026 correspondence.

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. 38 C.F.R. § 3.1(p). 

Prior to March 24, 2015, a claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). 

From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1(p) (2018); 79 Fed. Reg. 57,696 (Sept. 25, 2014).

VA has a duty to give a sympathetic reading to the Veteran's filings and "determine all potential claims raised by the evidence, applying all relevant laws and regulations." Moody v. Principi, 260 F.3d 1306 (Fed. Cir. 2004), quoting Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). VA has a duty to fully develop any filing made by determining all potential claims raised by the evidence. Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013). The Board should also not limit its review to the four corners of the claim itself. Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir. 2019). However, although the Board must interpret a claimant's submissions broadly, "the Board is not required to conjure up issues that were not raised by the claimant." Brannon v. West, 12 Vet. App. 32, 35 (1998); see Criswell v. Nicholson, 20 Vet. App. 501, 503-04 (2006) ("[I]t follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised.").

Effective March 24, 2015, VA must consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition. 38 C.F.R. § 3.155(d)(2); 79 Fed. Reg. 57660 (Sep. 25, 2014). Thus, VA is obligated to develop and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level. Bailey v. Wilkie, 33 Vet. App. 188, 201 (2021).

In Gudinas v. McDonough, issued after Bailey, the Court stated, "The law is clear that claims for secondary service connection are not claims for increased compensation and are not part and parcel of a claim for increased compensation for the primary condition." 34 Vet. App. 25, 37 (2021), aff'd 54 F.4th 716 (Fed. Cir. 2022). The Court cited Manzanares v. Shulkin, 863 F.3d 1374, 1379 (Fed. Cir. 2017), as concluding that a claim for secondary service connection was not part of a pending claim for an increased rating of the primary condition and thus was not entitled to the same effective date as the primary condition, and Ross v. Peake, 21 Vet. App. 528, 
 service connection are not claims for increased compensation and are not part and parcel of a claim for increased compensation for the primary condition." 34 Vet. App. 25, 37 (2021), aff'd 54 F.4th 716 (Fed. Cir. 2022). The Court cited Manzanares v. Shulkin, 863 F.3d 1374, 1379 (Fed. Cir. 2017), as concluding that a claim for secondary service connection was not part of a pending claim for an increased rating of the primary condition and thus was not entitled to the same effective date as the primary condition, and Ross v. Peake, 21 Vet. App. 528, 532 (2008), as holding that an award of secondary service connection is not an award of increased compensation because it requires the incurrence of an additional disability. Gudinas, 34 Vet. App. at 38.

As an initial matter, the Board notes that remand is not warranted. The Board acknowledges that it previously remanded this matter for a medical opinion regarding when the Veteran's insomnia first manifested in order to determine the date entitlement arose. Moreover, the Court previously vacated a prior Board denial based on the inadequacy of an opinion that the Board relied on to determine the date of entitlement. However, the need for any such medical opinion is moot because, for the reasons discussed below, there was no pending claim of service connection for insomnia prior to October 26, 2011. The proper effective date is the date of claim or date of entitlement, whichever is later. Thus, even if the date of entitlement is prior to October 26, 2011, an earlier effective date must be denied because the date of claim would be later, and any medical opinion regarding when entitlement arose would have no reasonable possibility of substantiating the claim. 38 C.F.R. § 3.159(d). As such, to continue to seek an opinion would merely result in perpetuation of "the hamster-wheel reputation of Veterans law," Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting), and the Board will proceed with adjudication.

The Board agrees with the Veteran that service connection for insomnia was raised, and thereafter adjudicated, during his ongoing appeal for an increased rating for his back disability. However, 38 C.F.R. § 3.155(d)(2), the basis of the relevant holding in Bailey, was not effective prior to March 24, 2015. As a result, it is not legally permissible for the Veteran to have raised secondary service connection pursuant to 38 C.F.R. § 3.155(d)(2) prior to March 24, 2015, as contemplated in Bailey. However, the analysis does not end there as the relevant provision in § 3.155(d)(2) was intended to not alter the informal claim system in place prior to March 24, 2015, which provided for reasonably raised claims of secondary service connection during an ongoing increased rating claim for the primary disability. Bailey, 33 Vet. App. at 199. As the current effective date for this disability is October 26, 2011, the prior claim system is pertinent to this matter. 

In a January 2023 decision, during an ongoing appeal for an increased rating for the Veteran's service-connected back disability, the Board raised and remanded the issue of entitlement to service connection for insomnia. The Board acknowledges, and has conceded numerous times in prior decisions and remands, that the claim for an increased rating for the back remained pending since February 9, 1972, which is the date of receipt of a claim of service connection for a back disability and the effective date of the grant of service connection for the Veteran's back disability. See, e.g., June 2024 decision. However, a claim for secondary service connection for insomnia is not considered to be part and parcel of the claim for an increased rating for the Veteran's back disability, as is well established by case law. Thus, the Board must still determine when VA first received a claim for secondary service connection for insomnia to determine the date of claim for this matter.

The Board notes that it previously made no finding regarding the date of claim for this matter and limited any findings to the date of entitlement, because prior Board denials and remands focused solely on the date of entitlement, with no discussion or findings regarding when VA first received a claim of secondary service connection for insomnia. There was merely a discussion that insomnia was raised during the course of the ongoing increased rating claim for the back, the latter of which had remained pending since February 9, 1972, which the Board does not construe as a finding of the date of claim for insomnia. 

In the
 Thus, the Board must still determine when VA first received a claim for secondary service connection for insomnia to determine the date of claim for this matter.

The Board notes that it previously made no finding regarding the date of claim for this matter and limited any findings to the date of entitlement, because prior Board denials and remands focused solely on the date of entitlement, with no discussion or findings regarding when VA first received a claim of secondary service connection for insomnia. There was merely a discussion that insomnia was raised during the course of the ongoing increased rating claim for the back, the latter of which had remained pending since February 9, 1972, which the Board does not construe as a finding of the date of claim for insomnia. 

In the event that it is found that the Board previously made a finding that the date of claim for this matter is the same as the date of claim for the back simply because the secondary service connection claim was raised during that ongoing increased rating claim, such finding would be the result of clear and unmistakable error because the date of claim of service connection for insomnia is not part and parcel of the claim of an increased rating for the back and does not automatically have the same date of claim. Moreover, the February 9, 1972 claim for the back does not discuss insomnia (including difficulty sleeping) or reference documents discussing insomnia, let alone indicate an intent to apply for benefits related to insomnia, and thus any finding that there was a claim of secondary service connection for insomnia would be clear and unmistakable error on that basis as well. For these reasons, the Board herein would not be bound to any such prior finding.

For communications received prior to March 24, 2015, where a "review of all documents and oral testimony reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue of the claimant's entitlement to such a benefit or, if appropriate, to remand the issue to the [AOJ] for development and adjudication of the issue." Suttman v. Brown, 5 Vet. App. 127, 132 (1993) (emphasis added); see also Buckley v. West, 12 Vet. App. 76, 85-85 (1998). However, as stated in Ross, "[i]t is only when a claimant alleges a separate disability that arises after, and as a result of, the original disability, that he or she can be awarded secondary service connection." Ross, 21 Vet. App. at 532-33 (emphasis added). 

There was simply no indication that the Veteran intended to seek benefits related to insomnia at any time prior to October 26, 2011, including when reading the Veteran's statements sympathetically, and, thus, no claim was received informally or reasonably raised prior to October 26, 2011.

Prior to October 26, 2011, there are two documents received from the Veteran wherein his sleep is discussed. In an August 1970 informal Notice of Disagreement, wherein the Veteran contested the rating assigned for his right ankle disability, the Veteran stated that his right ankle pain continued to radiate into his back and thigh and he "continue[d] to suffer discomfort and inability to get restful sleep." See VA Form 9 correspondence. In a February 1972 Certificate of Attending Physician, received February 23, 1972, the physician noted that the Veteran "says pain is constant, can't sleep" and referred the Veteran to another physician. The Board finds that neither of these documents are an informal claim or, as applicable, a claim of secondary service connection raised during the course of an ongoing appeal, because there is no indication that the Veteran intended to seek benefits related to insomnia or difficulty sleeping. 

Here, the fact pattern is similar to that in Brannon. In Brannon, the veteran asserted that the Board failed to address an implicit claim for secondary service connection of a psychiatric disorder caused by his service-connected skin disorder. These assertions were based on treatment records, including a notation from a physician that the veteran's skin condition was affecting his psychological functioning and a VA examiner noting that the veteran was suffering from "tremendous anxiety secondary to itching." 12 Vet. App. at 33. The Court ruled that the record contained no evidence the veteran "had ever expressed an intent to seek secondary service connection for his psychiatric condition prior to the Board's decision. The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek secondary service connection for the psychiatric condition." Id. at 35 (emphasis added). As in Brannon, the Veteran here never expressed an intent to seek secondary service connection for insomnia prior to October 26, 2011. Evidence, including lay or medical evidence, discussing difficulty sleeping related to ankle or back pain, without more, is not sufficient to reasonably
 the veteran was suffering from "tremendous anxiety secondary to itching." 12 Vet. App. at 33. The Court ruled that the record contained no evidence the veteran "had ever expressed an intent to seek secondary service connection for his psychiatric condition prior to the Board's decision. The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek secondary service connection for the psychiatric condition." Id. at 35 (emphasis added). As in Brannon, the Veteran here never expressed an intent to seek secondary service connection for insomnia prior to October 26, 2011. Evidence, including lay or medical evidence, discussing difficulty sleeping related to ankle or back pain, without more, is not sufficient to reasonably raise a claim of service connection because there is no demonstrated intent. VA cannot be expected to intuit a claim of secondary service connection whenever evidence is received during the course of an ongoing claim for another disability.

In particular, the Veteran's lay statement in his August 1970 informal Notice of Disagreement is effectively no different than the medical evidence discussed in Brannon and does not indicate an intent to seek benefits. Indeed, his statement is similar to that found in Ellington v. Nicholson, 22 Vet. App. 141 (2007), aff'd Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008), where the veteran had completed a questionnaire discussing symptoms of his leukemia as part of a VA examination for leukemia and he listed high blood pressure and borderline diabetes. The Court held that, without "sufficiently manifesting an intent to apply for benefits" for hypertension and diabetes, the questionnaire was not considered to be an informal claim. The Court also discussed that it was impracticable for VA to open an informal claim in these circumstances and that forcing VA to do so "would eviscerate the intent requirement and inundate VA with a flood of new claims, thereby delaying the adjudication of claims filed by veterans who are fully committed to their final resolution." Id. at 145-46. Here, the Veteran merely discussed difficulty sleeping and did not indicate that he was applying for benefits or seeking service connection for insomnia or difficulty sleeping.

Because VA did not receive a claim of service connection for insomnia, including a formal claim, informal claim, or reasonably raised claim, prior to October 26, 2011, the date of claim is no earlier than October 26, 2011. As discussed above, the appropriate effective date is the date of claim or the date of entitlement, whichever is later. Thus, regardless of whether the date of entitlement is earlier than October 26, 2011, the date of claim would be later, and an earlier effective date may not be awarded. 

To the extent that the Veteran asserted that non-precedential Board or Court decisions applied Bailey in an effective date context, see, e.g., September 2024 correspondence, the Board discussed above that Bailey, as relevant, is inapplicable for this matter because 38 C.F.R. § 3.155(d)(2) did not exist prior to March 24, 2015. Additionally, Board decisions and non-precedential Court memorandum decisions for other claimants are not binding herein. Moreover, the Court in Bailey did not discuss effective dates or overrule prior caselaw regarding the nature of secondary service connection claims, but rather the matter concerned VA's duty to develop a claim of secondary service connection. See Gudinas v. McDonough, 34 Vet. App. 25, 38 (2021) (distinguishing the applicability of Bailey from Manzanares and Ross). As such, the Veteran's reliance on Bailey is misplaced in this context.

Finally, the Veteran discussed the VA Adjudication Procedures Manual (M21-1). See September 2024 correspondence. This decision is consistent with the M21-1. The M21-1 discusses that secondary service connection is an allegation of additional disability and, for effective date purposes, is distinguished from and treated differently than a complication of a disease process or other issue that is considered within the scope of a separately claimed disability. See V.ii.4.A.3.f, Effective Dates for Secondary SC. To be clear, the Veteran's insomnia is not within the scope of his February 9, 1972 claim of service connection for a back disability, as it is the incurrence of additional disability and not a worsening of the underlying back condition. The Veteran has not asserted otherwise, as he asserted that "my insomnia [is] a separate, compensable disability, not a symptom of my back disability...my insomnia and back disabilities are separate and distinct disabilities with no overlapping or duplicative symptoms." See January 2026 correspondence. 

In summary, there is no indication that the Veteran intended to seek benefits related to insomnia prior
 scope of a separately claimed disability. See V.ii.4.A.3.f, Effective Dates for Secondary SC. To be clear, the Veteran's insomnia is not within the scope of his February 9, 1972 claim of service connection for a back disability, as it is the incurrence of additional disability and not a worsening of the underlying back condition. The Veteran has not asserted otherwise, as he asserted that "my insomnia [is] a separate, compensable disability, not a symptom of my back disability...my insomnia and back disabilities are separate and distinct disabilities with no overlapping or duplicative symptoms." See January 2026 correspondence. 

In summary, there is no indication that the Veteran intended to seek benefits related to insomnia prior to October 26, 2011. Thus, an effective date prior to October 26, 2011 is denied.

REASONS FOR REMAND

Entitlement to SMC based on the need for aid and attendance prior to August 14, 2017.

The evidence of record reflects that the Veteran required the regular use of aid and attendance from at least August 14, 2017. However, none of the evidence relates to the prior period and the level of assistance, if any, required prior to August 14, 2017. As a result, there was a pre-decisional duty to assist error in not obtaining an examination, and remand for an examination is warranted.

The matter is REMANDED for the following action:

The AOJ should arrange for an aid and attendance and housebound status examination for the Veteran to determine the impact of his service-connected disabilities upon activities of daily living for the period prior to August 14, 2017. 

In providing an opinion regarding whether the Veteran was in need of regular aid and attendance prior to August 14, 2017, the examiner should only consider service-connected disabilities prior to August 14, 2017.

If the examiner cannot provide an opinion without resorting to mere speculation, the examiner must state whether some additional testing or information is needed, and possibly available, that would permit such an opinion. In other words, the examiner should discuss whether the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large or whether there is a limitation of the individual examiner (whether based on lack of expertise, insufficient information, or unprocured testing). The examiner should clearly identify what facts cannot be determined.  

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Sandler, 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.