Citation Nr: 1756792 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-13 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for glaucoma, to include as secondary to a service-connected disability. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for sleep apnea to include as secondary to a service-connected disability. 4. Entitlement to service connection for emphysema to include as secondary to a service-connected disability. 5. Entitlement to service connection for heart disease, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1974 to July 1975 and from November 1976 to March 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in May 2017. A transcript of the hearing is associated with the claims files. The Veteran initially submitted a claim for entitlement to service connection for nervousness. The Board notes that, particularly with respect to psychiatric disorders, a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). In light of Clemons, the Board has recharacterized the issue, as reflected on the title page, to include a claim of entitlement to service connection for an acquired psychiatric disorder. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends he is entitled to service connection for glaucoma, an acquired psychiatric disorder, sleep apnea, emphysema and heart disease. Additionally, the Veteran contends that his glaucoma, sleep apnea, emphysema and heart disease are secondary to his acquired psychiatric disorder. The Board finds that a remand is warranted for additional development. First, VA has a duty to assist in the procurement of relevant records. 38 C.F.R. § 3.159 (2017). "Relevant records" to be considered to determine a Veteran's eligibility for compensation benefits are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claims. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). At the May 2017 hearing the Veteran testified that he continues to undergo treatment through VA and has seen his treatment providers on a regular basis during the past year. VA treatment records from August 2010 to August 2015 have previously been associated with the claims file. On remand, appropriate attempts should be made to locate and obtain any outstanding VA treatment records. Acquired psychiatric disorder Next, the Veteran was afforded a VA examination in July 2009 as to mental disorders. If VA provides an examination that examination and opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examiner noted the Veteran had a diagnosis of adjustment disorder with mixed anxiety and depressed mood, with mood congruent psychotic features along with associated features of post traumatic stress disorder. See July 2009 VA examination. Additionally, the examiner noted a history of alcohol and marijuana abuse. The VA examiner noted the Veteran's in-service stressful events and his reported symptoms which originated while he was in-service. The examiner failed to fully address whether the Veteran's adjustment disorder is related to his service. During the course of this appeal, effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran's claim was certified to the Board in October 2015 (after August 4, 2014) a diagnosis of an acquired psychiatric disorder must conform to DSM-V. See 38 C.F.R. § 4.125(a) (2017). As the July 2009 VA examination was based on the DSM-IV criteria, an updated examination using the appropriate criteria must be conducted. As such the Board finds that a supplemental VA examination is warranted to address the Veteran's VA treatment records and current manifestations under the appropriate DSM-V diagnostic criteria and to fully address direct service connection. Sleep apnea The Veteran contends that his sleep apnea is a result of his in-service stressful events which resulted in his difficulty sleeping, ongoing symptoms and subsequent development of sleep apnea. Additionally, the Veteran contends his sleep apnea is secondary to his acquired psychiatric disorder. In light of the Veteran's testimony regarding symptoms in-service and since, and VA treatment records the Board finds that the evidence as it stands tends to indicate that a current disability may be related to service. Therefore, a VA examination and opinion is warranted addressing the potential relationship, if any, between the claimed sleep apnea and service. Additionally, if service connection is granted for an acquired psychiatric disability during the course of the appeal then any additional warranted development should be completed to include affording the Veteran VA examinations as to glaucoma, emphysema and heart disease to address secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with the electronic case file any outstanding VA medical records. Specifically from August 2015 forward. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. Then, schedule the Veteran for a VA psychiatric examination with a medical professional of sufficient expertise to determine whether the Veteran has a diagnosis of an acquired psychiatric disorder, to include depression, anxiety and adjustment disorder, under DSM-V standards. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a. Identify all current acquired psychiatric disorders under DSM-V criteria. b. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's acquired psychiatric disorder is related to active service? The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to service treatment records in March 1975 noting an acute depressive reaction manifested by anxiety, insomnia, hostility and stress. See March 25, 1975 STR. The term "as likely as not" (at least fifty percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. After completing the development above to the extent possible, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of his sleep apnea. After reviewing the claims file, and examining the Veteran the examiner is asked to answer the following questions: a. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's current sleep apnea is related to active service? b. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's sleep apnea was caused by his acquired psychiatric disorder? c. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's sleep apnea was aggravated (permanently worsened beyond its natural progression) by his acquired psychiatric disorder? The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The term "as likely as not" (at least fifty percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4.Thereafter, readjudicate the issues on appeal, and take any additional development warranted. If the determination remains unfavorable to the Veteran, he and his representative, if any, should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond 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. FRANCIS 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) (2017).