Citation Nr: 1332898 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-34 882 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, other than post-traumatic stress disorder (PTSD), to include as secondary to diabetes. 2. Entitlement to service connection for sleep apnea, to include as secondary to diabetes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1976. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2008 rating decision by the RO that, inter alia, denied claims for service connection for depression and sleep apnea. In December 2008, a notice of disagreement (NOD) was filed with the denial of these claims. A statement of the case (SOC) was issued in August 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2009. Supplemental SOCs were completed in November 2010 and May 2012. The Board notes that a prior final rating decision dated in September 1997 denied entitlement to service connection for PTSD but did not address whether service connection was warranted for any other psychiatric disability. As such, the Board will adjudicate the claim for service connection for an acquired psychiatric disability currently on appeal on a de novo basis without the requirement that new and material evidence be received to reopen this claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Also in this regard, the September 2008 rating decision, in addition to denying service connection for depression and sleep apnea, found that new and material evidence had not been received to reopen the claim for service connection for PTSD, and the Veteran specifically limited his notice of disagreement with respect to this decision to the denial of the claims for service connection for depression and sleep apnea (as well as an additional issue, service connection for erectile dysfunction as secondary to diabetes, that was granted by an August 2009 rating decision.) Given the multiple psychiatric diagnoses of record, the Board has recharacterized the claim for service connection for depression as encompassing a claim of service connection for any acquired psychiatric disorder (aside from PTSD for the reasons stated above), however diagnosed . See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In his September 2009 substantive appeal, the Veteran requested a Board video-conference hearing before a Veterans Law Judge. Although the requested hearing was scheduled for September 2012, he canceled the hearing.. The Board notes that in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claims. The Virtual VA folder contains VA outpatient treatment reports not physically of record dated through April 2012 documented to have been considered in the May 2012 SSOC. Also contained in the Virtual VA file is a brief to the Board submitted by the Veteran's representative. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND Based on a review of the claims file and the contentions of record, the Board finds that further RO action on the claims on appeal is warranted. In argument presented in October 2010, the Veteran's representative found fault with the July 2009 addendum opinion by a VA examiner that found that the Veteran's depression preceded his diabetes, and was therefore not related to his diabetes. In particular, the Veteran's representative argued as follows: The appellant has reported his original diagnosis for diabetes was shortly after discharge in 1976. However, in the addendum report, the examiner indicates the appellant reported his diagnosis in 2004 or 2005 after his return from Iraq. There is no evidence in the file indicating the appellant was ever in Iraq. His discharge was December 3, 1976, over twenty years before the current Iraq war. In light of this, the mental health exam and the addendum should be considered as inadequate due to the . . . obvious confusion by the examiner in the addendum. In point of fact, the Veteran's reference to his diagnosis of diabetes after "return from Iraq" refers not to military service in Iraq, but civilian work as a contract employee. See eg, history reported at an October 2007 QTC VA examination. At this examination, it was reported that diabetes was diagnosed while he was working in Iraq. The Veteran did not file a claim for service connection for diabetes until June 2007, and the first clinical evidence of record reflecting indications of diabetes is dated in 2004 and 2005. The record does reflect clinical evidence of psychiatric problems prior thereto, to include a February 1971 service treatment report reflecting an impression of anxiety, a medical history collected in conjunction with the October 1976 separation examination that showed the Veteran reporting depression secondary to his discharge from service, and reports from an August 1997 VA examination that resulted in a diagnosis of dysthymia. From the above, rather there being "confusion" by the examiner who conducted the July 2009 opinion, the rationale for his negative opinion-that the Veteran's depression pre-dated his diabetes-is in fact supported by the evidence of record. However, there is still the matter of whether the Veteran's diabetes aggravated his depression or any other acquired psychiatric disorder, and the Veteran's representative in his brief to the Board requested that the Veteran be afforded an opinion in this regard. Moreover, there is not of record an opinion that addresses whether service connection for depression may be granted as directly related to service that considers the February 1971 service treatment report reflecting an impression of anxiety and complains of depression at the separation examination. The Board is required to consider all theories of entitlement raised by the appellant, or raised in the record, in its adjudication. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). With respect to sleep apnea, which was diagnosed by an overnight polysomnogram at a private medical facility in April 2005, the Veteran's representative in his October 2010 presentation found fault with the opinion following an August 2009 VA examination that the Veteran's sleep apnea was not likely caused by or a result of his service connected diabetes, but was instead the result of upper airway passage obstruction associated soft tissue swelling in the oropharynx due to morbid obesity. First, the Veteran's representative found fault with the fact that, as stated by him, the VA examiner who conducted the August 2009 VA examination was not a pulmonary or sleep medicine specialist but instead was an anesthesiologist. Second, the Veteran's representative said the examiner did not address whether the obesity said to have caused sleep apnea was the result of his service-connected diabetes. In addition, the brief submitted to Board by the Veteran's representative requested that the Veteran be afforded an opinion as to whether his sleep apnea has been aggravated by service-connected diabetes. Given the contentions and relevant in-service and post service records, some of which have been set forth above, the Board finds that VA examinations that include opinions as to whether the Veteran has an acquired psychiatric disorder, other than PTSD, or sleep apnea that is etiologically related to service or the service connected diabetes are necessary in this case in order to fulfill the duty to assist the Veteran. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the matters on appeal. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or response(s) from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examinations for evaluation of any psychiatric problems and sleep apnea by appropriate physicians (with respect to sleep apnea, a pulmonary or sleep medicine specialist, if possible) at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, and copies of any must be made available to each physician designated to examine the Veteran, and each examination report should reflect consideration of the Veteran's documented medical history and assertions. Following a physical examination of the Veteran, and review of the claims file, each examiner should provide appropriate opinion, as follows. Each examiner should set forth the complete rationale for the conclusion(s) reached in a printed (typewritten) report. Psychiatric Examiner - For each acquired psychiatric disability other than PTSD shown at any point since the Veteran filed his claim in May 2008, whether it is at least as likely as not (i.e., there is at a 50 percent or greater probability) that the disability: (a) Had its onset during service, or is/was otherwise medically related to service [to include the February 1971 service treatment report reflecting an impression of anxiety and/or complains of depression at the separation examination]; or, if not (b) Was caused or is aggravated (worsened beyond natural progression) by the service-connected diabetes. If aggravation is found, the examiner should attempt to quantify the extent of aggravation, if possible. Sleep Disorders Examination - For any sleep apnea shown at any point since the Veteran filed his claim in May 2008, whether it is at least as likely as not that the disability:: (a) Had its onset during service, or is/was otherwise medically related to service; or, if not (b) Was caused or is aggravated (worsened beyond natural progression) by the service connected diabetes, to specifically include any obesity caused by diabetes. If aggravation is found, the examiner should attempt to quantify the extent of aggravation, if possible. 5. If the Veteran fails to report to any scheduled VA examination(s), obtain and associate with the claims file a copy of any notice of the date and time of any such examination(s) sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent medical evidence (to include any added to the record since the last adjudication of the claims) and legal authority. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the your appeal. 38 C.F.R. § 20.1100(b) (2012).