Citation Nr: 1752914 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-01 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include chronic adjustment disorder with depressed mood. 2. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder. 3. Entitlement to service connection for a gastrointestinal disorder, to include peptic ulcer disease, to include as secondary to an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1970 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In May 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran' s claims of entitlement to service connection for chronic adjustment disorder and peptic ulcer disease have been recharacterized as reflected on the title page, to include consideration of all psychiatric and gastrointestinal disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran has been diagnosed with chronic adjustment disorder with depressed mood and a personality disorder. See October 2011 VA Examination Report. The October 2011 VA examiner's etiological opinion is inadequate, as she failed to discuss whether the Veteran has a disability resulting from a mental disorder superimposed upon his diagnosed personality disorder during service. See 38 C.F.R. § 4.127. Thus, an addendum opinion is necessary. Moreover, the Veteran asserts that his gastrointestinal disorder is related his acquired psychiatric disorder. See May 2017 Board Hearing Transcript (Tr.) at 42. Therefore, the issue of entitlement to service connection for a gastrointestinal disorder is inextricably intertwined with the claim for service connection for an acquired psychiatric disorder. Thus, action on this claim is deferred pending completion of the remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In regards to the Veteran's claim of entitlement to service connection for sleep apnea, he has testified that his sleep apnea manifested during service. See May 2017 Board Hearing at 4. His service treatment records reveal complaints of sleep impairment. Further, the Veteran has submitted lay statements indicating that he snored loudly and was often tired during service. See August 2017 written statement. VA treatment records show a diagnosis of obstructive sleep apnea. As such, the Board finds that the Veteran should be scheduled for an appropriate VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Additionally, as the Veteran's behavioral issues during service are directly implicated in this case, his service personnel records should be obtained on remand. Finally, any outstanding VA and private treatment records should be obtained and associated with the Veteran's file, including any records of a sleep study conducted in 1971 or 1972. See Board Hearing Tr. at 19. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records, to include records of a sleep study conducted in 1972 or 1972. See Board Hearing Tr. at 19. If any of these records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Obtain the Veteran's complete service personnel records. 4. Then, obtain an addendum opinion from the October 2011 VA examiner (or other qualified psychiatrist, if unavailable). The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were reviewed. No additional examination is necessary, unless the examiner determines otherwise. (a) Please identify all psychiatric disorders diagnosed since September 2011, including major depressive disorder, adjustment disorder with depressed mood, and a personality disorder. If a diagnosis of major depressive disorder is not warranted, please explain your finding in light of the diagnoses of the same in the VA outpatient records. (b) For each psychiatric disability other than a personality disorder diagnosed, is it at least as likely as not (50 percent or greater probability) that such disability: (1) had its onset during service; (2) was superimposed upon his personality disorder during service (please comment on your earlier statement that the Veteran's personality disorder interfered with his ability to function effectively in the military); or (3) is otherwise related to service? In addressing this question, please specifically address the Veteran's service treatment records showing multiple complaints of nervousness, sleep impairment, and sleep walking in September and October 1970; the September 1970 mental hygiene consultation record revealing a diagnosis of passive aggressive personality with anxiety and depressive features; and his September 1970 separation examination where he reported a history of bed wetting, nervous trouble, attempted suicide, and sleep walking. Please also address the Veteran's report that he was under a lot of stress during basic training because three close friends were killed in the Vietnam war. See May 2017 Board hearing at 20. (c) If and only if any currently diagnosed psychiatric disability other than a personality disorder is determined to be related to service, please also opine whether it is at least as likely as not (50 percent or greater probability) the Veteran's peptic ulcer disease is (1) proximately due to or (2) aggravated (permanently worsened) by said psychiatric disability. Please include a robust rationale for all opinions expressed. Additionally, if you are unable to render an opinion without resorting to speculation, please explain why this is so. 5. Then schedule a VA examination to ascertain the etiology of the Veteran's sleep apnea. The entire claims file should be made available to and reviewed by the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's sleep apnea had its onset in or is otherwise related to service, to include as a result of the Veteran's report of sleep apnea symptoms in service. In addressing this question, please address the Veteran's service treatment record showing complaints of sleep impairment and sleep walking, the May 2017 hearing testimony, and the August 2017 lay statement of record. Please include a robust rationale for all opinions expressed. Additionally, if you are unable to render an opinion without resorting to speculation, please explain why this is so. 6. Then, after taking any additional development deemed necessary, readjudicate the issues on appeal. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ S. BUSH 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) (2016).