Citation Nr: 1240887 Decision Date: 11/30/12 Archive Date: 12/05/12 DOCKET NO. 09-10 154 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and a mood disorder. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from August 2002 to December 2004. This included service in support of Operation Iraqi Freedom from April 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the VARO in Jackson, Mississippi, that, in pertinent part, denied entitlement to service connection for PTSD and sleep apnea. The Board finds the claim with regard to PTSD must be recharacterized as a single claim for service connection for chronic acquired psychiatric disorder, to include PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) stated the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claim and description of the claim, reported symptoms, and the other information of record. A review of the Virtual VA paperless claims processing system reveals that in September 2012, the Veteran was informed by letter that service connection for a mood disorder was denied on the basis that there was no link between any current mood disorder and the Veteran's military service. Under Clemons, supra., the Veteran's claimed mood disorder is encompassed in the current claim on appeal. The appeal with regard to service connection for a chronic acquired psychiatric disorder and for sleep apnea is REMANDED to the RO by way of the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran should further action is required. REMAND The record as it stands is inadequate for the purpose of rendering a fully informed decision as to the claims that have been certified for the Board's review at this time. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to his claims. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). With regard to the claim for service connection for a psychiatric disability, a review of the record reveals varying psychiatric diagnoses. The focus of the actions by the RO has been on the Veteran's claim for service connection for PTSD. The Veteran was accorded a PTSD examination by VA in March 2011 and the examiner stated that he reviewed the claims file. The examiner initially indicated the Veteran was a reliable historian, but in his discussion he stated "the endorsement of improbable symptoms by the Veteran undermines the validity of the history." The Board notes that the Veteran has presented a consistent history ever since service. Indeed, just a few weeks before his discharge from service in December 2004, the Veteran stated that he had spent 12 months in Iraq with the 2nd Squadron of the 2nd Armored Cavalry Regiment. He stated "I traveled in many convoys and dismounted patrols in Baghdad. I was shot at several times and hit by an IED. I also had to guard the bodies of two soldiers from Eagle Troop who were killed in an ambush in Sadr City for several hours." A review of the claims file contains a notation in 2010 that the claims file was referred to the U.S. Army Joint Services and Records Research Center (JSRRC) coordinator for a stressor memorandum or referral to the JSRRC for verification of stressors. Record review reflects that has not been accomplished. There is no information with regard to the activities of the 2nd Armored Cavalry Regiment in the claims file. The Veteran has provided the last names of the two individuals who were killed in action. He claims that he and another individual had to guard the bodies of those people for several hours in a dark room in a dark corner. He states the incident occurred on December 25, 2003, at Camp Marlboro in Iraq. He also indicates the individuals were assigned to Eagle Troop of the 2nd Armored Cavalry Regiment. With regard to the claim for service connection for sleep apnea, the Veteran was accorded a respiratory examination by VA in July 2011. The claims file was reviewed by the examiner and he noted that a review of the record revealed the Veteran was discharged from service because of repeated episodes of oversleeping and not reporting to his duty station, including during afternoon hours. The examiner stated that the Veteran did not report disruptive snoring or that others had reported witnessing any snoring. The examiner also noted the Veteran's weight during service was 190 pounds, while his current weight was 268 pounds. The Veteran indicated his weight had been as heavy as 274 pounds within the past year. The Veteran believed the weight gain was due to psychotropic medications he was taking. The examiner noted that the Veteran had no reports of snoring while in service, and found that communications from two service comrades of record did not refer to the Veteran snoring or having incidents of apneas. He referred to the Veteran's appreciable weight gain since service discharge. He also noted that the Veteran stated that he smoked marijuana up to three times a day since discharge, but current "DAU" was not positive for marijuana. The examiner indicated that, as a result, "it is not likely that the Veteran's reported difficulties sleeping during service with failure to wake on time is sufficient evidence of the Veteran having developed sleep apnea during his active duty service." However, the record reflects that even while in service, the Veteran reported difficulty sleeping, and he stated this symptom began while he was stationed in Iraq. In November 2009, the Veteran himself indicated that he provided buddy statements to confirm both sleep apnea and PTSD symptoms. However, the two statements of record from the individuals were made in 2004 and were focused primarily on the Veteran's ability to function in the military. No reference was made by either individual as to the Veteran's psychiatric status or any difficulty sleeping. The Veteran has not provided statements from anyone else, including family members, as to their awareness of his having sleep difficulties that might have begun during his military service. In view of the foregoing, the Board finds that further development is in order and the case is REMANDED for the following actions: 1. Request the Veteran to identify all records of VA and non-VA health-care providers who have treated him for psychiatric disability, including PTSD, and sleep apnea from the time of his discharge in service in 2004. After obtaining any appropriate authorizations for release of medical information, the RO/AMC must seek to obtain any potentially relevant records that have not been previously received from each health-care provider the Veteran identifies. *The Veteran must also be advised that he is free to submit statements from any individuals such as family members, friends, and/or service comrades, who can attest to his having sleep apnea during or since his military service. 2. The RO/AMC, after waiting an appropriate time period for the Veteran to respond and receiving all available relevant identified records of treatment, must refer the claims file to the physician who conducted the respiratory examination of the Veteran at the VA Medical Center in Jackson, Mississippi, in July 2011. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating an opinion as to whether the Veteran's sleep apnea is related to his military service. *If that examiner is not available, another examination is authorized by a physician with appropriate expertise for the purpose of determining whether the Veteran's current sleep apnea is related to his military service. The complete explanation must accompany any opinion provided and that examiner must also be advised to address the Veteran's own report of symptoms and treatment during service and following service. 3. The Veteran's military personnel records must be obtained and associated with the claims file. Then, VA must contact the U.S. Joint Services Records Research Center (JSRRC), Kingman Building, 7701 Telegraph Road, Alexandria, VA, 22315, and request any information with regard to the activities of the 2nd Armored Cavalry Regiment of the 1st Armored Division from April 2003 to April 2004. Of particular interest is information regarding an incident on December 25, 2003, at Camp Marlboro in Iraq when two individuals assigned to Eagle Troop of the 2nd Armored Cavalry Regiment were reportedly killed. Any available records with regard to the activities of the 2nd Armored Cavalry Regiment, to include command and chronology, must be obtained and associated with the claims folder. If the search of available records results in negative results, the RO must notify the Veteran and his representative and afford them an opportunity for response. 4. The RO/AMC, after waiting an appropriate time period for the Veteran to respond and receiving all available relevant identified records of treatment and information, shall refer the record to the VA physician who conducted the PTSD examination of the Veteran at the VA Medical Center, Jackson, Mississippi, in March 2011. That examiner must review all the evidence of record and a copy of the treatment, and must indicate in the examination report that such review has been performed, and must indicate in the examination report that such review has been performed. The examiner is asked to determine the nature and etiology of any current psychiatric disability, to include but not limited to PTSD and a mood disorder, and to opine whether any current psychiatric disability is causally or etiologically related to the Veteran's service, including any "fear of hostile military or terroristic activity." * The examiner's attention is drawn to the December 2004 memorandum from the Veteran in which he reported just before discharge from service that he had traveled on many convoys and dismounted patrols in Baghdad, Iraq, and was shot at several times and hit by an explosive device. He must also address the Veteran's consistent history of guarding bodies of two soldiers from Eagle Troop who were reportedly killed in an ambush in Sadr City on Christmas Day, 2003. * If deemed appropriate, the Veteran must be scheduled for further medical examinations. All indicated tests and studies, to include psychological testing, must be performed, and any indicated consultations must be scheduled. * If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must state this, with a fully reasoned explanation. He must at least elaborate as to his comment that the Veteran endorsed "improbable" symptoms at the time of the March 2011 examination. *IF THE VETERAN IS FOUND TO HAVE SERVED IN COMBAT, THE EXAMINER IS ADVISED THAT THE VETERAN'S ACCOUNT OF INCIDENTS OCCURRING IN COMBAT IN PRESUMED CREDIBLE UNDER THE LAW. * For each psychiatric disorder found, the examiner must provide an opinion as to whether the disorder began during active service or is related to any incident of service. * If a diagnosis of PTSD is made, the examiner is to state the stressor that supports a diagnosis of PTSD. * As for any conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If any opinion and supporting rationale cannot be provided without invoking processes related to guesses or judgment based upon mere conjecture, the examiner must clearly and specifically so state in the report and explain why this is so. If he or she concludes there is insufficient information to provide an etiologic opinion without resort to mere speculation, the examiner must state whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's psychiatric pathology. 5. If the physician who conducted the March 2011 examination is not available, an examination by another physician knowledgeable in psychiatry must be conducted and that individual must be tasked with the same questions set forth above. 6. After all appropriate development has been accomplished, VA must then review the record, including any newly acquired evidence, and readjudicate the issues on appeal. The readjudication must include consideration of all the evidence of record and the application of all appropriate legal theories. 7. If the benefits sought are not granted to the Veteran's satisfaction, he and his representative must be provided with a supplemental statement of the case. This must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations pertinent to the issues on appeal. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and cooperate fully in the development of his case, and he must be notified that the consequences of failure to report for any VA examination without good cause or to provide additional information may result in denial of his claims. 38 C.F.R. § 3.655 (2012). The appellant 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.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ VITO CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).