Citation Nr: 1324987 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-36 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as due to a service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to November 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran claims he has sleep apnea and a neuropsychiatric disorder as a result of his military service. More specifically, the Veteran indicates he incurred an in-service head injury falling down a hill during a training exercise where he hit rocks and trees. At the time, he injured his right knee, which ultimately led to a medical discharge. He is unsure if he lost consciousness at that time, but he does recall a long hospital stay for treatment, primarily for his right knee. Since the injury, he claims he experienced, among other things, trouble sleeping and depression. In the alternative, he claims he has depression and other psychological disturbances as a result of his decreased quality of life due to his service-connected right knee disorder. At his hearing before the Board in April 2011, he further testified he had no nonmilitary-related risk factors for sleep apnea. His service treatment records confirms the in-service injury to his right knee after falling down a hill at the beginning of his military service. He was also treated in September 1976 for complaints of "nerves" where he indicated he had problems adjusting to army life, not getting enough sleep, and not being able to save enough money to get married. The examiner noted he appeared "depressed" at that time, reported as secondary to his situation. The Veteran was examined in October 1976 primarily for his right knee disability, which ultimately led to a medical discharge in November 1976. At the time of his 1976 separation examination, the Veteran denied a history of a head injury, but reported frequent trouble sleeping and nervous troubles. No diagnoses related to sleep disturbances or nervous troubles were rendered at that time. Service connection for a traumatic brain injury was denied in a January 2011 rating decision and the Veteran did not appeal this decision. 38 U.S.C.A. § 7105 (2012). After service, his current treatment records indicate diagnoses of obstructive sleep apnea, mood disorder, depression, anxiety, and an adjustment disorder. Within VA and private treatment records it is well documented that the Veteran believes his psychiatric diagnoses are related to his decreased quality of life due to the right knee injury. For example, in October 2008, the Veteran was diagnosed with a mood disorder where he presented complaining of "depression due to the negative impact his injury has had on his quality of life." The VA physician did not proffer an opinion with regard to etiology at that time. In December 2008, the Veteran underwent a VA neuropsychological evaluation where the examiner noted the Veteran's in-service injury and possibly loss of consciousness after hitting trees and rocks as he rolled down the mountain. The examiner found various cognitive abnormalities on examination. With regard to etiology, the examiner considered the in-service injury and the Veteran's complaints of struggles with depression and stress since this injury, but ultimately found that because the injury was 32 years ago, it is "unlikely" that any injury directly resulted in his current cognitive problems. However, the examiner did not address psychiatric diagnoses, the likely etiology of psychiatric diagnoses, or the Veteran's contentions that his decreased quality of life due to his right knee injury caused or aggravated a psychiatric disorder. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has never been afforded VA examinations for these claimed disorders. In light of in-service complaints of trouble sleeping and nervous trouble, VA examinations are warranted to ascertain whether the Veteran's current diagnoses are related to his military service or to his service-connected right knee disorder. VA must also take this opportunity to obtain recent VA outpatient treatment records from November 2012 to the present. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA facilities at which he received treatment for the disorders at issue. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain VA outpatient treatment records from November 2012 to the present from the VAMC in Wilmington, Delaware. All attempts to secure this evidence must be documented in the claims file by the RO and VA facilities must provide a negative response if no records are available. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After all records are obtained to the extent available, the Veteran must be afforded VA examinations to determine whether any currently or previously diagnosed sleep apnea and psychiatric disorder, to include depression, memory loss, and sleep disturbance are related to his military service or to a service-connected disorder. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiners, and the examiners must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiners are directed to consider the Veteran's contention of feeling a loss of quality of life due to his service-connected right knee disorder, his description of in-service injury falling down a hill, the in-service complaints of trouble sleeping and nervous trouble, the in-service September 1976 treatment with complaints of depression, and the post-service treatment and diagnoses of sleep apnea, depression, mood disorder, anxiety, and adjustment disorder. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on the clinical examination and appropriate diagnostic tests, the evidence of record, and with consideration of the Veteran's statements, opinions as to the following must be provided: (i) Whether any currently or previously diagnosed sleep apnea or sleep disturbance was incurred in service or otherwise due to his military service; (ii) Whether any currently or previously diagnosed psychiatric disorder was incurred in service or otherwise due to his military service; and (iii) Whether any currently or previously diagnosed psychiatric disorder is proximately due to or aggravated by his service-connected right knee disability. The examiners must opine if any degree of the Veteran's acquired psychiatric disorder or sleep apnea was caused or aggravated by military duties or service-connected disabilities. A complete rationale for all opinions must be provided. If the examiners cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiners must provide the reasons why an opinion would require speculation. The examiners must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiners must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report(s) prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The VA examination reports obtained must be reviewed by the RO to ensure that they are in complete compliance with the directives of this Remand. If any report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).