Citation Nr: 1330577 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 11-01 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD with depressive symptoms. 2. Entitlement to service connection for sleep apnea, to include as secondary to gastroesophageal reflux disease, hypertension, and/or an acquired psychiatric disorder, to include PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1982 to August 1982, and from December 1985 to December 2005, to include in Southwest Asia for operation Iraqi Freedom. This matter is before the Board of Veterans' Appeals (Board) on appeal from June and October 2010 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina. A claim of entitlement to service connection may include any disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or VA obtains in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran's separate claims of entitlement to service connection for PTSD and for depression have, in light of the facts, been recharacterized more broadly, as agreed upon at the hearing, as a claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD with depressive symptoms. The issue of entitlement to service connection for sleep apnea, to include as secondary to gastroesophageal reflux disease, hypertension, and/or an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in Operation Iraqi Freedom in "urban combat conditions." 2. The Veteran testified that his stressors included taking and returning fire when his convoy was attacked in September 2003, his unit's discovery of a mass grave in May 2003, various exposures to mortar and grenade attacks, and a general fear for his life while in Iraq. 3. A VA psychologist diagnosed the Veteran as having PTSD related to events he experienced as traumatic during service. CONCLUSION OF LAW PTSD with depressive symptoms was incurred during active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. In July 2011, the Veteran testified at a videoconference hearing before the Board. A transcript of this hearing is associated with the claims file. Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (2) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). In this case, the Veteran asserts that serving in Iraq-to include in a convoy that was under attack and uncovering a mass grave site-caused him to fear for his life. Service personnel records verify that the Veteran received an Army Commendation Medal for volunteering "For an extremely dangerous mission" and "cool competence under urban combat conditions" from September 1 to 3, 2003. The Veteran has reported that he was in a convoy that came under attack and returned fire September 1, 2003. Therefore the circumstances of the Veteran's service are consistent with his report of being in a convoy that came under attack in Iraq. In April 2010, and again in February 2011, a VA examining psychologist diagnosed the Veteran as having PTSD. Each time, the VA psychologist reviewed the events the Veteran reported as traumatic in service, and relayed that the diagnosis was related to events the Veteran experienced during service in Iraq. There is no clear and convincing evidence contrary to the VA psychologists' opinions. See 38 C.F.R. § 3.304(f)(3). As such, the Veteran's testimony in connection with his personnel records establishes the occurrence of his claimed stressor, i.e., that he was in a convoy that came under attack. As VA psychologists' opinions establish a diagnosis of PTSD and a link between the current symptomatology and the Veteran's stressor, service connection for an acquired psychiatric disorder to include PTSD with depressive symptoms is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD with depressive symptoms is granted. REMAND The Veteran contends that he is entitled to service connection for sleep apnea, to include as secondary to gastroesophageal reflux disease, hypertension, and/or an acquired psychiatric disorder. Gastroesophageal reflux disease and hypertension are service-connected, and with this decision, PTSD with depressive disorder, are also service-connected. The Veteran is currently diagnosed as having sleep apnea, which he treats with a continuous positive airway pressure (C-PAP) machine. He reports experiencing symptoms to include snoring and waking, gasping for air, since approximately 1992, while in service. The Veteran's wife has also described how the appellant started to snore loudly, choking for air, and pausing breathing in the 1990s. In light of his history, the Veteran should be afforded a VA examination to determine the nature and etiology of his sleep apnea. See 38 U.S.C.A. § 5103A(d)(1); see also 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate VCAA notice regarding entitlement to service connection for sleep apnea, to include as secondary to gastroesophageal reflux disease, hypertension, and/or an acquired psychiatric disability. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. The examiner must review the claims folder, to include Virtual VA and a copy of this REMAND. Following examination, the examiner should opine as to whether it is at least as likely as not that the Veteran's sleep apnea was incurred in or caused by service. If not, the examiner must opine whether it is at least as likely as not that the Veteran's gastroesophageal reflux disease, hypertension, and/or PTSD with a depressive disorder (a) caused or (b) permanently aggravated (worsened) his sleep apnea. The examiner must provide a complete fully reasoned rationale for all opinions expressed. 3. The Veteran is to be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. 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). 4. After the development requested, the RO should review any examination report to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. Thereafter, the RO must readjudicate the issue. If the benefit is not granted, the appellant and his counsel must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs