Citation Nr: 1325253 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-06 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, dementia, and affective disorder. 2. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and wife ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to September 1993. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2013, the Veteran was afforded a Board hearing before the undersigned. A transcript of that proceeding has been associated with the claims file. The RO has characterized the Veteran's appeal as a claim for service connection for PTSD. However, the record also shows that the Veteran has been diagnosed with depressive disorder, affective disorder, and dementia. In this regard, claims for service connection for one psychiatric disorder encompass claims for service connection for all psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has recharacterized the claim for PTSD on appeal as it appears on the cover page of this document. The Board recognizes that during the course of this appeal, the RO separately adjudicated and denied service connection for dementia in a September 2012 rating decision. The United States Court of Appeals for Veterans Claims, however, has held that, when determining the scope of an issue on appeal, the Board has an obligation to broadly construe the claimant's description of the claim, the symptoms he describes, and the information he provides in connection with that claim. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the Veteran's claim encompasses claims for service connection for all psychiatric disorders, including dementia. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). A. Psychological Disorder The Veteran contends that he has a psychological disorder which is related to service. With respect to PTSD, in particular, he asserts that such disorder is the direct result of in-service stressors. The record reflects that the RO conceded the Veteran's claimed stressors, but denied the claim on the basis that the Veteran does not have a confirmed PTSD diagnosis. The Veteran testified in May 2013 before the undersigned, that he was receiving current, ongoing treatment for PTSD at private and VA facilities. In light of the Veteran's hearing testimony, which suggests that there are outstanding VA and private treatment records pertaining to the Veteran's psychological disorder(s), the Board finds that additional development is necessary with respect to the psychiatric disorder claim, to include PTSD, depressive disorder, dementia, and affective disorder. 1. Obtain outstanding VA and private treatment records Again, the Veteran testified in May 2013 that he is receiving private mental health treatment for PTSD at Scott and White Healthcare in Texas. No such records are currently associated with the claims file. The Veteran also reported that he received recent (i.e., 2013) treatment for PTSD and depressive disorder at the VA Medical Center in Temple, Texas. The Veteran's Virtual VA claims folder contains records dated up to November 2012. Upon remand, the RO/AMC must attempt to obtain the Veteran's private treatment records, and associate all records of VA mental health treatment dated from December 2012 to the present. 2. Potential outstanding service mental health records In May 2013, the Veteran's wife testified that the Veteran received various in-service post-deployment counseling and treatment upon his return from active service in Southwest Asia from October 1990 to April 1991. See Hearing Transcript, p. 6. Notably, on a July 1991 Report of Medical History, the Veteran checked "yes" as to having "nervous trouble of any sort." The Veteran expressly stated that his nervous problem started while serving in Southwest Asia as a result of events he had witnessed. There are no other complaints, treatment, or diagnoses relating to a psychological disorder in the Veteran's service treatment records. In light of the Veteran's wife's testimony outlined above, and further considering the in-service notation regarding nervous trouble on the July 1991 Report of Medical history, the Board finds that the RO/AMC should attempt to obtain any available records on mental health counseling/treatment that the Veteran reportedly received after returning from Southwest Asia in April 1991. 3. New VA examination Lastly, the Board finds that the Veteran should be afforded a new VA psychological examination to properly assess the nature and severity of all diagnosed psychological conditions. The Board is cognizant of the fact that two previous VA examinations in July 2010 and April 2011 found that the Veteran did not meet the diagnostic criteria for PTSD and provided dementia diagnoses instead. Neither of the VA examiners provided an etiology opinion as to the dementia diagnosis, or any of the other diagnosed psychological disorders (i.e. depressive disorder and affective disorder) for that matter. The examiners also did not address the documented in-service complaints of psychological problems, including nervous trouble. For the foregoing reasons, and in light of the outstanding VA and private treatment records noted above, the Veteran must be afforded a new, comprehensive VA psychological examination upon remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, this case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern the relationship, if any, between the Veteran's psychological disorders and service. These questions must be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). B. Sleep Apnea The Veteran asserts that service connection for sleep apnea is warranted on either a direct or secondary basis. See DRO and Board Hearing Transcripts, generally. Service treatment records are silent as to complaints, treatment, or diagnoses relating to sleep apnea. Following service, the Veteran was seen for complaints of snoring in 2007; he was diagnosed with obstructive sleep apnea in 2008. At his hearing before a Decision Review Officer in April 2012, the Veteran essentially testified that his sleep apnea had its onset during active duty service. His wife also testified that the Veteran's snoring/breathing problems became much worse following his separation from service. At his May 2013 hearing before the undersigned, the Veteran denied having any breathing/sleeping problems prior to service and his wife testified that the Veteran had experienced sleeping/snoring problems since they were married in 1994. The Veteran also suggested that his sleeping problems were potentially linked to his psychological problems. In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the CAVC has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). In light of the Veteran's competent reports of ongoing symptomatology during and since service, the Veteran's wife's competent reports of worsening symptomatology since service, and the current obstructive sleep apnea diagnosis, the Board finds that a VA examination with medical nexus opinion is required to determine whether obstructive sleep apnea is causally related to service (or, if a psychological disorder is likewise found to be related to service, whether such disorder causes or aggravates the Veteran's obstructive sleep apnea condition). Accordingly, the case is REMANDED for the following action: 1. Ensure VCAA notice is sent to the Veteran in regard to a claim of entitlement to service connection for obstructive sleep apnea on a secondary basis. 2. Obtain the Veteran's relevant medical/mental health treatment records from any VA facility identified by the Veteran to the extent not already on file for the periods from November 2012 to the present, and prior to February 2007. 3. After securing any necessary release(s) and with the assistance of the Veteran as needed, identify and obtain all private health care records not previously secured that relate to mental health treatment, to specifically include treatment received from Scott and White facility. 4. Contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center, with a follow-up request for copies of all mental health treatment records and/or records relating to any post-deployment psychological treatment or counseling. 5. To the extent an attempt to obtain any of these records is unsuccessful, the claims files should contain documentation of the attempts made. The Veteran and his representative should also be informed of the negative results and be given opportunity to secure the records. 6. After completing any additional notification and/or development action deemed warranted by the record, schedule the Veteran for a VA psychiatric examination to determine the etiology of any diagnosed acquired psychological disorder, not limited to, and specifically including PTSD, dementia, depressive disorder, affective disorder, and adjustment disorder. The claims file must be made available to the examiner. After physical examination of the Veteran and a review of the medical and scientific literature, the examiner should: (a). Provide a diagnosis or diagnoses of all psychiatric disorders that have existed at any time on and since June 2008 to the current time, regardless if symptoms of such are no longer manifest given the Veteran's worsening dementia; and (b). Render an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any diagnosed psychiatric disorder to include PTSD, which has existed at any time on and since June 2008, is related to the Veteran's period of service from October 1988 to September 1993, including a tour of duty in Southwest Asia/Operation Desert Storm in 1990-1991? In providing an opinion, the examiner is asked to consider, and comment as necessary, on the service treatment records, showing complaints of nervous problems since returning from Southwest Asia; VA clinic records showing diagnoses of various psychiatric disorders to include a provisional PTSD diagnosis, as well as dementia, affective disorder, adjustment disorder, and depressive disorder; any additional VA and/or private mental health records obtained by way of this remand; and the Veteran's/his wife's statements regarding onset of psychological symptoms during and since service. All opinions expressed must be supported by a complete rationale. 7. After completing any additional notification and/or development action deemed warranted by the record, schedule the Veteran for the appropriate VA examination(s) to determine the etiology of obstructive sleep apnea. The claims file must be made available to the examiner. After physical examination of the Veteran and a review of the medical and scientific literature, the examiner should: (a) Render an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that obstructive sleep apnea is related to the Veteran's period of service from October 1988 to September 1993, to include a tour of duty in Southwest Asia/Operation Desert Storm in 1990-1991, and/or exposure to any environmental hazards therein? In providing an opinion, the examiner is asked to consider, and comment as necessary, on the service treatment records; the VA clinic records showing diagnoses of snoring and sleep problems as early as 2007; and the Veteran's statements, and those of his wife, attesting to onset of sleep problems in-service and ongoing sleep problems since service. (b) If not directly related to service, then render an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that obstructive sleep apnea is (i) caused or (ii) aggravated (permanently increased in severity beyond the normal progression of the disorder) by any psychiatric disorder positively identified in Question 6 (b) above. All opinions expressed must be supported by a complete rationale. 8. Thereafter, if the benefit sought on appeal continues to be denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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. 2012). _________________________________________________ TANYA A. SMITH Acting 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).