Citation Nr: 1752572 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-05 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for an acquired psychological disability to include post-traumatic stress syndrome (PTSD), and anxiety. 2. Entitlement to service connection for a sleep disturbance, to include as a result of an acquired psychological disability to include PTSD and or anxiety. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran had active service from May 1988 to May 1991, from January 2004 to October 2004 and October 2009 to September 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. VA jurisdiction is transferred to Phoenix, Arizona. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2016. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Acquired Psychiatric Disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder to include PTSD and anxiety, which also resulted in sleep disturbance. It is unclear whether the Veteran has a separate and distinct disability manifested by sleep disturbance, or whether this is a symptom of a psychiatric disability. Thus, the claim must be deferred pending resolution of the acquired psychiatric disorder claim. At an October 2011 VA examination, the examiner determined that although the Veteran's stressor of witnessing rocket attacks was adequate to support a diagnosis of PTSD, the Veteran did not meet the full criteria for PTSD. However, additional medical evidence has been associated with the claims file since the October 2011 VA examination, which include private diagnoses of PTSD; other acquired psychiatric disorders, and some evidence of a nexus between PTSD and the Veteran's service. The Veteran submitted a December 2016 mental disorder Disability Benefits Questionnaire (DBQ) and a medical statement dated May 2014 from his family doctor who diagnosed the Veteran with PTSD, anxiety and insomnia. In his May 2014 medical statement, he opined that the diagnosis was related to a period of service. The opinion and DBQ do not provide an adequate basis for service connection, as it lacks any cognizable rationale for the conclusions presented. However, the private opinion and DBQ represents the conclusions of a medical professional competent to provide medical opinions, and it is sufficient to trigger VA's duty to assist. In addition, the Veteran also testified in an October 2016 Board hearing, and he described additional in-service stressors that he reportedly experienced. The evidence indicates that the Veteran served two tours in Iraq. He reported being in fear of his life due to possible IEDs and enemy fire while traveling in convoys in Iraq and serving as a border patrol agent. As such, this matter must be remanded for a VA examination in order to determine the nature and etiology of the Veteran's diagnosed acquired psychiatric disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination with a VA psychiatrist or psychologist. The examiner should diagnose any acquired psychiatric disability using the DSM-5, to include PTSD, anxiety and sleep disturbances. A) If PTSD pursuant to the DSM-5 is found, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that the Veteran's PTSD was caused by his military service? Why or why not? In so doing, the examiner should identify the in-service stressor the diagnosis is based on or explain why PTSD should be considered to be the result of fear of hostile military or terrorist activity. b) If an acquired psychiatric disorder other than PTSD, to include anxiety and sleep disturbances is found, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that such disability began during service, within a year of service, or was otherwise caused by his military service. Why or why not? In so doing, the examiner should address the relevance, if any, of the May 2014 opinion from Dr. Mayberry. c) Does the Veteran have a sleeping disability, wholly separate from his psychiatric disability. If so is it at least as likely as not (50 percent or greater) that such a disorder either began during or was otherwise caused by his military service. If the examiner believes the sleeping impairment is part of the Veteran's psychiatric symptomatology, it should be so expressed. In answering the above questions, the examiner should specifically consider the Veteran's statements in support of his claim, his stressor statements, and his October 2016 Board hearing testimony. 2. Thereafter, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations and affords them the appropriate time period for response. Then, return the claims folder to the Board for further appellate consideration. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).