Citation Nr: 1736035	
Decision Date: 08/30/17    Archive Date: 09/06/17

DOCKET NO.  03-37 068	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to an effective date earlier than October 15, 2002 for the grant of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with bipolar disorder.

2.  Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with bipolar disorder.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disability.  

4.  Entitlement to service connection for obstructive sleep apnea (OSA).  

5.  Entitlement to special monthly compensation (SMC), based on the regular need for aid and attendance of another.  



REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

G. Fraser, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1965 to July 1967.  This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

The record before the Board consists of electronic records in systems known as Virtual VA and the Veterans Benefits Management System.

All issues other than entitlement to an earlier effective date for the grant of service connection for an acquired psychiatric disorder are addressed in the REMAND that follows the ORDER section of this decision.


FINDINGS OF FACT

1.  The Veteran initiated a claim for an acquired psychiatric disorder in October 1991; his claim was finally denied in a September 2002 Board decision, which found his claimed in-service stressors could not be verified.  

2.  Since the above-noted Board decision was rendered, the Veteran submitted relevant official service records that existed and had not been associated with the claims file when VA previously decided the claim; these records were at least partially relevant in the establishment of service connection for the acquired psychiatric disorder.  


CONCLUSION OF LAW

The criteria for an effective date earlier than October 15, 2002, for the grant of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with bipolar disorder have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156, 3.400 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to an earlier effective date for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with bipolar disorder.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2016).

Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Legal Criteria

Generally, a claim that has been denied in an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7104(b) (West 2014).  

However, if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.  Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.  See 38 C.F.R. § 3.156(c)(1).

Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.  38 C.F.R. § 3.156(c)(2).

Factual Background and Analysis

The Board finds a complete procedural history of the above-noted earlier effective date claim is warranted at the outset.  As noted above, the Veteran initially claimed entitlement to service connection for an acquired psychiatric disorder in October 1991.  Thereafter, in June 1992, the RO denied the Veteran's claim, finding a specific stressor could not be verified.  The Veteran initiated a timely appeal.  Thereafter, the Board confirmed the RO's denial in a September 2002 decision.  In that decision the Board also found the Veteran's "claimed inservice stressors have not been verified."  

Since the September 2002 Board decision was issued, the Veteran obtained and submitted additional relevant official service records.  Specifically, the Veteran submitted official deck log records from the U.S.S. Sacramento, which confirm the ship executed an emergency breakaway to aid the U.S.S. Kitty Hawk as a result of a fire aboard that ship.  The deck logs also show the ship assisted with the recovery of service members who were injured and killed aboard the S.S. Impala, which had struck a reef and sunk.  These records were instrumental in corroborating the Veteran's in-service stressors.  In particular, the Board found the Veteran's reports of witnessing a fire aboard the U.S.S. Kitty Hawk, and transferring corpses from the SS Impala were established by way of the above-noted deck logs in a September 2012 remand.  These confirmed stressors were then assessed as being the primary basis for the Veteran's acquired psychiatric disorder.  

In sum, the Board finds the service records obtained following the initial denial of the above-noted claim were at least partially relevant to substantiating previously deficient elements of the Veteran's claim for service connection.  Here, the September 2012 Board remand specifically acknowledged the deck logs provided evidence necessary to corroborate the Veteran's previously alleged in-service stressors.  Moreover, a lack of a confirmed stressor was the essential basis for the Board's September 2002 denial of the claim.  Therefore, the Board finds an earlier effective date is warranted for the grant of service connection for the acquired psychiatric disorder.  


ORDER

The Board having determined relevant service records were obtained following the initial decision on the claim, entitlement to an effective date earlier than October 15, 2002 for the grant of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with bipolar disorder is granted.   
REMAND

The Board is of the opinion that additional development is required before the remaining claims on appeal are decided.

As noted by the examiner in the most recent October 2015 VA examination, there has been a vast disparity in clinical assessments with respect to the Veteran's psychiatric disorders.  Specifically, the examiner noted the various clinicians that have examined this Veteran have rendered severity assessments that range from malingering to totally disabled.  The Board notes that in the course of a March 2004 VA examination, two VA examiners found the Veteran's psychiatric disorder sufficiently disabling as to render him incompetent.  Those examiner's found his disability so disabling as to assign a global assessment of functioning score of 30, which is indicative of serious impairments.  A severely disabled psychiatric assessment was more recently echoed by a private psychologist in the course of an August 2014 evaluation.  Specifically, the clinician found the Veteran to be occupationally and socially impaired in all areas.  She further concluded the Veteran is unable to secure and follow substantially gainful employment as a result of his service connected psychiatric disorder.  

By contrast, the Veteran was assessed as malingering in the course of a January 2010 VA examination.  A review of the Veteran's Social Security Administration (SSA) records shows he was denied entitlement to social security benefits, as an Administrative Law Judge did not find him too disabled to perform substantially gainful employment.  Further, during both the Veteran's January 2013 and October 2015 VA examinations, he was assessed as having only occasional decreases in work efficiency as a result of his psychiatric disorder.  On the basis of these divergent psychiatric assessments, the Board has determined an examination by a panel of VA psychiatrists is necessary at this time. 

With respect to the Veteran's claim for obstructive sleep apnea, the Board observes the RO obtained a VA medical opinion in January 2014.  In sum, the examiner concluded the Veteran's OSA is less likely than not proximately due to or the result of his service-connected PTSD.  The examiner further concluded the Veteran's PTSD did not aggravate the OSA.  In support of these conclusions, the examiner indicated the Veteran was diagnosed with sleep apnea following an assessment which noted some central sleep apnea episodes.  The examiner also noted the Veteran's use of a continuous positive airway pressure (CPAP) machine.  The examiner wholly failed to explain how or why these facts lead to her conclusion.  A medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  As such, the Board finds a new VA examination and medical opinion is necessary. 

Finally, the Board notes the issues of entitlement to a TDIU rating and SMC must be held in abeyance at this time, because these issues are intrinsically intertwined with the above-noted remanded issues.  This follows, because the Veteran has asserted he requires aid and attendance that is provided by his service-dog.  In-part, the Veteran has asserted his dog provides necessary assistance to attend to the hazards or dangers caused by his obstructive sleep apnea.  Specifically, the Veteran claims his dog has been trained to awaken him when he is experiencing an apneic episode.  Therefore, this issue is in part predicated upon the establishment of service connection for his OSA.  This issue should also be further addressed in the course of the Veteran's sleep apnea examination.   In addition, the Veteran has asserted he requires the assistance of his dog and spouse to attend to his daily functioning as a result of his psychiatric disorder.  Further, the issue of TDIU is also intertwined with the Veteran's acquired psychiatric disorder, and as such, SMC and TDIU must be addressed in the course of the psychiatric examination.  

On remand, relevant ongoing medical records should be obtained.  38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following actions:

1. Undertake development to obtain any outstanding records pertinent to the Veteran's remaining claims.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).

2. Then, the Veteran should be afforded an examination by a panel of at least two VA psychiatrists or psychologists, who have not previously examined this Veteran, to determine the severity of his service-connected acquired psychiatric disorder.    

All pertinent evidence must be made available and reviewed by the examiners.  Any indicated studies should be performed.  The examiners must provide all information required for rating purposes.  Additionally, the examiners should discuss the divergent severity assessments provided by the various clinicians that have previously examined this Veteran.      

The examiners should also opine on the occupational effects caused by the Veteran's service-connected psychiatric disorder.  The examiners should provide concrete examples of functional impairments caused by the disability, to include the medications taken for this disability.  The types of impairments the examiners should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration.  The examiners must discuss and consider the Veteran's lay statements.     

In addition, the examiners should comment on whether there is a 50 percent or better probability that the Veteran's service-connected psychiatric disorder is sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background.    

Finally, the examiners should comment on whether the Veteran requires the aid and attendance of his service dog and spouse to attend to the hazards or dangers associated with his acquired psychiatric disorder.  In this respect, the examiners may wish to consider completing of a VA form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) to address this matter.  

A complete rationale for all proffered opinions must be provided.  If the examiners are unable to provide any required opinion, they should explain why.  If the examiners cannot provide an opinion without resorting to mere speculation, they must provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed.

3. Also afford the Veteran a VA examination by a physician with sufficient expertise to address the etiology of his claimed obstructive sleep apnea.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Any indicated studies should be performed.  

Following a review of the relevant records and lay statements, the examiner should state an opinion whether it is at least as likely as not (a 50 percent probability or greater) the Veteran's sleep apnea: 

a) was caused by his service-connected PTSD; or 

b) was permanently worsened by his service-connected PTSD.

The examiner must provide a complete rationale for all proffered opinions.  The examiner must discuss and consider the Veteran's competent lay statements.  

In addition, the examiner should comment on whether the Veteran requires the aid and attendance of his service dog to attend to the hazards or dangers associated with his sleep apnea.  In this respect, the examiner may wish to consider completion of a VA form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) to address this matter.  

If an examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.  

4. Then undertake any other development determined to be warranted.

5. Finally, readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond.  Thereafter, if indicated, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is 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).



_________________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs