Citation Nr: 1331182 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-31 816A ) 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 posttraumatic stress disorder (PTSD) and anxiety. 2. Entitlement to service connection for a respiratory disorder, claimed as a breathing disorder, to include as secondary to an undiagnosed illness. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 1983 and from September 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran was afforded a video conference hearing before the Board in October 2011. The Veteran's claims of entitlement to service connection for high anxiety, also claimed as posttraumatic stress disorder, and a mental disorder with night sweats and nightmares, has been recharacterized into the broader issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD and anxiety. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 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 Acquired Psychiatric Disorder, to include PTSD and anxiety Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). The Veteran has described transporting ammunition during the Persian Gulf War while serving in Saudi Arabia. In so doing, he reports driving past the scene of a military convoy accident, and witnessing the decapitated body of a female soldier at King Khalid Military Center. The Veteran also described witnessing the aftermath of a destroyed Iraqi convoy. He indicated that although he did not receive or return fire during his transport of ammunitions, he feared for his life when he went on such missions armed with only an M-16, and possibly one other individual riding with him. Hence, a search for any military records confirming any of the above stressors should be conducted. This should include a review of the military duties performed by the appellant's unit. Medical records show that the Veteran has a current PTSD diagnosis. Treatment records show that he experiences symptoms to include isolation, anger, suicidal and homicidal ideation (without plan), sleep problems, depression and anxiety. A VA examination for the purposes of determining the etiology of the Veteran's current psychiatric disability has yet to be conducted. Following a review of the evidence of record, the Board finds that the medical evidence is insufficient to render a decision in this case, and the claim must be remanded for a VA examination to secure a medical opinion addressing whether any current psychiatric disability, to include PTSD, is related to service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Sleep apnea, and a respiratory disorder, claimed as a breathing disorder, to include as secondary to an undiagnosed illness The Veteran's DD Form 214 reflects that he is a Persian Gulf veteran. Congress has created special rules with regard to such veterans establishing entitlement to service connection. Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability." 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is currently defined as either an undiagnosed illness or a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2). The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary. 38 U.S.C.A. § 1117(a)(1)(B), (b)(2); 38 C.F.R. § 3.317(a)(1)(i). By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2)(ii)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(2)(ii)(4). The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multi-symptom illness include, but are not limited to signs or symptoms involving the respiratory system or sleep disturbances. 38 U.S.C.A. §§ 1117; 38 C.F.R. § 3.317 (b)(8),(9). In the context of a claim for service connection based on undiagnosed illness, if such a claim is denied because the symptoms have been attributed to a known clinical diagnosis, the Board must address whether the disability so diagnosed is related to service on a direct incurrence basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994) (when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). The service medical records show that in July 1991 an examiner noted that the Veteran had reported experiencing shortness of breath from the dust in Saudi Arabia. The Veteran also reported that since service he had experienced difficulty sleeping more than approximately three hours at a time, and sinus drainage that bothered his lungs and caused him to awake choking. In August 2009 the Veteran was afforded a respiratory examination. That study revealed no definite evidence for a respiratory diagnosis. The Veteran did show a mild restrictive defect on pulmonary function tests, which the examiner opined was most likely due to his weight. The examiner indicated that the Veteran could have a diagnosis of obstructive sleep apnea, but at that time the appellant had yet to be evaluated using a sleep study. In November 2009, the Veteran underwent a polysomnography test. He reported a medical history that included snoring, choking, talking and shaking in his sleep, nightmares, night sweats, and difficulty concentrating during the day. The impression was borderline normal polysomnogram with the exception of reduced sleep efficiency and absence of slow-wave sleep. It was indicated that further investigation of the appellant's sleep required clinical correlation and a face-to-face evaluation. At his October 2011 hearing the Veteran indicated that he had since been diagnosed with sleep apnea, and that he was using a continuous positive airway pressure (C-PAP) machine. The most recent VA treatment records associated with the claims folder are from August 2010, but do not include a definitive diagnosis of sleep apnea. As such, it appears that there are outstanding VA treatment records that should be associated with the claims folder on remand. The Veteran should afforded another VA examination to assess the nature and etiology of any respiratory and sleep disorders. If a disorder is diagnosed the examiner must determine whether it is related to service. If there is no diagnosis, then the examiner should determine whether there is an undiagnosed illness or a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the appellant and request that he fully complete a PTSD questionnaire. The Veteran should be specifically requested to identify each and every claimed stressor which he believes occurred while on active duty. In so doing the appellant must attempt to identify the date and place of each stressful event. 2. Following the receipt of the appellant's completed PTSD questionnaire the RO must undertake all appropriate development to aid the claimant in independently verifying each and every claimed in-service stressor. This includes attempting to find military records which may help to document the nature of the convoy duties the appellant and his unit performed during Operation Desert Storm. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. The RO must request all outstanding VA treatment records since August 2010. If such records are not obtained, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then, the RO must: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 4. Following receipt of available outstanding records, the Veteran is to be afforded a VA medical examination by a psychiatrist to ascertain the nature and etiology of any diagnosed psychiatric disorder to include PTSD and anxiety. The claims folder, to include access to Virtual VA, must be furnished to the examiner for use in the study of this case. The examiner's report must acknowledge their review of all of the evidence of record. The examiner is to conduct a comprehensive mental status evaluation. Any indicated diagnostic studies, including psychological testing and PTSD subscales, must be accomplished if deemed warranted by the examiner. All established psychiatric diagnoses are then to be fully set forth. For any diagnosed psychiatric disorder, to include PTSD, the examiner must opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service, or, in the case of PTSD, is a result of any independently verified in-service stressor experienced therein. To this end, the examiner should specifically address whether the claimed stressor is related to the Veteran's fear of hostile military or terrorist activity while serving during Operation Desert Storm. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Any medical opinion expressed by the examiner must be accompanied by a well reasoned rationale that references the evidence which supports any opinion offered. 5. Schedule the Veteran for VA respiratory and sleep examinations to ascertain the etiology of any diagnosed respiratory and sleep disorders. The examiner is to review the claims folder, to include Virtual VA and this remand, and opine whether the appellant currently suffers from any respiratory or sleep disorder is attributable to a known clinical diagnosis or to a disease process. If so, the examiner must diagnosed the disorder in question, and address whether it is at least as likely as not that the diagnosed disorder is related to service. If the examiner cannot identify a known disease or disability which causes the appellant's respiratory or sleep symptoms, the examiner should address whether the disorder is due to a medically unexplainable undiagnosed illness. A complete rationale must be offered for any opinion provided. 6. The Veteran is to be notified that it is his responsibility to report for any scheduled examinations 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). 7. 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. 8. Upon completion of the above requested development and any additional development deemed appropriate, the RO must readjudicate the issues. All applicable laws and regulations should be considered. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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).