Citation Nr: 1336095 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 08-00 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, depression, and/or panic syndrome. 2. Entitlement to service connection for a sleep disorder. 3. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder and/or a sleep disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for hearing loss of the left ear and tinnitus and denied service connection for hypertension, high cholesterol, sleep problems, posttraumatic stress disorder (PTSD), and hearing loss of the right ear. In June 2010, the Veteran presented sworn testimony during a Travel Board hearing, which was chaired by an Acting Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The Acting Veterans Law Judge who held the June 2010 Travel Board hearing is no longer employed at the Board. In January 2012, the Board sent the Veteran a letter asking whether he wished to attend another hearing before the Board. See 38 C.F.R. § 20.707 (2013). The Veteran did not respond to this letter requesting another hearing before a different Veterans Law Judge. In August 2010, the Board denied the Veteran's claims of entitlement to service connection for high cholesterol and hearing loss of the right ear and remanded his claims for service connection for PTSD, hypertension, and a sleep disorder to the Appeals Management Center (AMC) for further evidentiary development. The Board notes that the Veteran filed his original claim of entitlement to service connection for PTSD. Although not expressly claimed by the Veteran, the Board is expanding his original claim to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him.). Accordingly, the issue has been recharacterized above. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and/or panic syndrome, a sleep disorder, and hypertension. The Veteran was afforded a VA psychiatric examination in December 2011. The examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD or any other Axis I disorder. She attributed all of his psychiatric symptoms to maladaptive personality features. The AMC then proceeded to deny the claim based on the absence of a diagnosed acquired psychiatric disorder, to include PTSD. However, the Court has held that the requirement of a presence of a current disability is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this regard, the December 2011 examiner failed to address the multiple prior psychiatric diagnoses in the claims file. Notably, although she references a December 2011 VA mental health service diagnosis of depression NOS, she did not provide an opinion on whether this diagnosis was related to service. There was also no discussion of a November 2009 private diagnosis of panic syndrome based on the Veteran's reports of panic attacks. In light of the diagnoses of record, the Veteran must be afforded a new VA examination to address the relationship between his military service and any diagnosed (current or past) psychiatric disorder(s). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Veteran was also afforded a VA examination for his claimed sleep disorder in December 2011. The examiner diagnosed the Veteran with insomnia and opined that it was not related to service because his sleep problems preexisted service and there is no evidence of sleep problems in service or of a diagnosis and treatment until the 1990s. This opinion is flawed. Initially, the examiner included that the Veteran's sleep disorder preexisted service based on a report of childhood sleep walking. Such does not meet the evidentiary standard for overcoming the presumption of soundness on entrance. Further, the examiner's statement that there was no evidence of sleep problems in service is inaccurate. The Veteran has provided competent and credible lay testimony as to his in-service sleep problems and sleep problems since service. The lack of medical treatment is not fatal to this claim. As such, the Board also finds the sleep disorder VA examination inadequate. See Barr, supra. Additionally, the Board's review of the record reflects that there may be outstanding VA and private treatment records. The Veteran submitted a statement in January 2012 indicating that he is treated at the Guntersville VA Community Based Outpatient Clinic (CBOC). However, the most recent VA treatment records are dated in August 2007. The December 2011 VA PTSD examination report references at least one December 2011 VA psychiatric treatment record that has not been associated with the claims file. VA has an obligation to associate all relevant records in VA's possession with the claims file of a veteran. 38 C.F.R. § 3.159 (2013). The case must also be remanded to attempt to obtain any such records. The Veteran also submitted an Authorization and Consent to Release Information (VA Form 21-4142) for Dr. I. in January 2012. On remand, the AMC must attempt to obtain these treatment records as well. Finally, the Veteran has claimed that his hypertension is secondary to his psychiatric disorder and/or sleep disorder, which have been remanded herein. As the readjudication of these claims may affect his claim for service connection for hypertension, these issues are inextricably intertwined. As such, the claims for service connection for an acquired psychiatric disorder and a sleep disorder must be readjudicated prior to the readjudication of the hypertension claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records from the Guntersville VA CBOC and any other VA facilities identified by the Veteran. 2. Attempt to obtain records from the Dr. I., the private provider mentioned in the Veteran's January 2012 VA Form 21-4142, and associate them with the claims file. Obtain a new release of information from the Veteran as necessary. All attempts to obtain such records should be documented in the claims file. 3. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner (a VA psychiatrist or psychologist or contract equivalent) to determine the nature and etiology of his acquired psychiatric disorder(s). The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner should identify and diagnose all acquired psychiatric disorders, to include those that may have resolved during the appeals process. The examiner must specifically address the multiple private diagnoses of PTSD, the November 2009 diagnosis of panic syndrome, and the December 2011 VA diagnosis of depression NOS. For each diagnosed psychiatric disorder, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise etiologically related to his active service. The examiner should determine whether this is adequate to support a diagnosis of PTSD. The examiner should also discuss the Veteran's reports of depression and sleep problems in and since service. If the examiner diagnoses the Veteran with a personality disorder, s/he must state whether the Veteran also has an acquired psychiatric disorder that is superimposed upon the personality disorder. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his claimed sleep disorder. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner should identify and diagnose all sleep disorders, to include those that may have resolved during the appeals process. For each diagnosed sleep disorder the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise etiologically related to his active service. The examiner should specifically address the Veteran's reports of sleep problems beginning in service. If the examiner believes that a sleep disorder preexisted service, then he or she must be able to state whether there is clear and unmistakable (undebatable) evidence that it preexisted service. Further, if the examiner determines that there is clear and unmistakable evidence that the disorder preexisted service, the examiner must also state whether there is clear and unmistakable evidence (undebatable) that the sleep disorder was not aggravated beyond its natural progression. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. After completing the above actions, the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and/or panic syndrome, and a sleep disorder should be readjudicated. Thereafter, readjudicate the claim for service connection for hypertension, to include as secondary to an acquired psychiatric disorder or a sleep disorder. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran. After he has had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. 38 C.F.R. § 3.655(b) (2013). 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 Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).