Citation Nr: 1601747 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 11-26 316A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder. 2. Entitlement to service connection for sleep apnea, to include as due to herbicide exposure and/or as secondary to hypertension and service-connected ischemic heart disease and chronic obstructive pulmonary disorder (COPD). REPRESENTATION Appellant represented by: Polly Murphy, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1964 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2012. A transcript of that hearing has been associated with the claims file. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With regard to the Veteran's claim for an acquired psychiatric disorder, the Board finds that a remand is necessary in order to fully comply with the Board's March 2014 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In particular, the Board notes that the AOJ did not provide the Veteran with adequate notice of the amended version of 38 C.F.R. § 3.304(f). Further, while a VA examination was obtained in July 2015, the examiner did not consider the opinions of Dr. J.C. and Dr. D.B. (initials used to protect privacy) and did not address the Veteran's psychiatric diagnoses of record other than PTSD, as directed by the Board in its March 2014 remand. As such, the Board finds that this case must be remanded to ensure compliance with its prior remand. Additionally, with regard to the Veteran's sleep apnea claim, the Board notes that at the Veteran's March 2012 hearing, the Veteran testified that his sleep apnea was caused by a heart disorder. Since the Board's March 2014 remand, the Veteran has been granted service connection for ischemic heart disease in a July 2015 rating decision. As such, a VA medical opinion is needed to determine whether the Veteran's service-connected ischemic heart disease caused or aggravated his sleep apnea. Moreover, the Board notes that the Veteran recently submitted authorization forms for private treatment records. As such, the AOJ should attempt to obtain such records on remand. Lastly, although the RO sent the Veteran a notice letter, he has not been informed of the evidence and information necessary to substantiate a claim on a secondary basis. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (failure by Board to enforce compliance with VA notice requirements of 38 U.S.C.A. § 5103(a) is remandable error). Thus, the Veteran should be provided proper notice on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should also send the Veteran a notice letter in connection with his claims for service connection. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claim; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. The letter should also explain how disability ratings and effective dates are determined. Specifically, the letter should notify the Veteran of the evidence necessary to substantiate a claim on both a direct and secondary basis. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his acquired psychiatric or sleep apnea disorders. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should made for the records identified in the January 2015 VA Forms 21-4142. Any outstanding, relevant VA medical records should also be obtained and associated with the claims file. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorders that may be present. A copy of the Board's remand directives should be provided to the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD subscales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. (a) The examiner should identify all current psychiatric disorders. (b) For any diagnosis identified other than PTSD, the examiner should indicate when the disorder manifested and whether it is at least as likely as not that the disorder is related to the Veteran's military service. (c) With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomology and any verified in-service stressor, including the fear of hostile military or terrorist activity. (d) The examiner should specifically address the private medical opinions submitted by Dr. J.C. and Dr. D.B. (e) The examiner should specifically address the Veteran's diagnosis of PTSD found within the opinions provided by Drs. J.C. and D.B., the diagnosis of anxiety disorder found within VA medical records, and the diagnosis of depressive disorder found within VA medical records. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After the above development has been completed, the AOJ should refer the Veteran's claims folder to the August 2015 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying medical opinion regarding sleep apnea. Only if deemed necessary by the VA examiner is an actual examination necessary. A copy of the Board's remand directives should be provided to the examiner. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the sleep apnea is caused by or permanently aggravated by the Veteran's service-connected ischemic heart disease. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran should be notified that it is his responsibility to report for a VA 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 (2015). In the event that the Veteran does not report for an examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be noted if any notice that was sent was returned as undeliverable. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the amended provisions of 38 C.F.R. §§ 3.304 and 3.310. The appellant has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).