Citation Nr: 1805498 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-23 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and disturbed sleep pattern. 2. Entitlement to service connection for a sleep disability, claimed as obstructive sleep apnea. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for psychosis/mental illness for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from July 1991 to July 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A September 2010 rating decision denied service connection for PTSD, sleep apnea, and a low back disability. A December 2012 rating decision denied service connection for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702. Subsequently, the claims file was transferred to the jurisdiction of the RO in Fargo, North Dakota. The Veteran previously requested to appear at a Board hearing, but submitted timely correspondence in December 2012 that indicated he did not want a Board hearing. The request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(d) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is required in this case. The Veteran previously received an initial VA PTSD examination in August 2010. Therein, the examiner found that the Veteran did not have a current diagnosis for PTSD and attributed his depression diagnosis to subsequent non-service related events. However, VA treatment records from July 2017 indicate a current diagnosis for PTSD, depressive neurosis, and disturbed sleep pattern, but do not contain any further information regarding a nexus to service. The Veteran also received a VA spine examination in August 2010. The examiner diagnosed the Veteran with chronic lumbar strain and opined that the Veteran's "lumbar condition was less likely than not caused by or a result of an injury that occurred in 1995." The examiner stated that the Veteran's "symptoms are myofascial in origin. Radiculopathy was not identified and x-rays were normal." The examiner did not provide any further explanation. Subsequently, recent VA treatment records from April 2015 diagnosed degenerative disc disease of the lumbar spine based on MRI results. In light of the new diagnosis, further opinion is necessary. Private treatment records, received in September 2016, indicate that the Veteran was diagnosed with mild obstructive sleep apnea; however, the physician did not provide a nexus opinion. Other private and VA treatment records indicate symptoms and treatment for a disturbed sleep pattern. As a result, a VA examination is warranted to determine whether the Veteran has a sleep disability related to service. The Board notes that the issue of entitlement to service connection for psychosis/mental illness for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 cannot be adjudicated until service connection for an acquired psychiatric disorder is addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the nature and etiology of any current low back disability. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination and note this in the examination report. The claims file should be made available for review to the examiner. The examiner should address the following: a) Whether it is at least as likely as not (50 percent of greater probability) that the has a current diagnosis for a low back disability that is related to service. i. The examiner should specifically discuss whether the July 1995 service treatment record that diagnosed a muscle strain is related to the Veteran's current treatment for degenerative disc disease and chronic low back pain. ii. The examiner should also discuss any relevancy and applicability of the medical research article on recurrent low back pain to the Veteran's current diagnoses that was submitted in support of the Veteran's claim. See Correspondence, received October 1, 2012. All opinions should be supported by a clear rationale. In rendering the requested opinion, the examiner is advised that the Veteran is competent to report in-service injuries, his symptoms, and history. Such reports should be specifically acknowledged and considered in formulating any opinions. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disability. The entire claims file should be reviewed by the examiner. After reviewing the record, the examiner is requested to: a) Identify any current psychiatric diagnoses. The examiner should comment on the VA treatment records that diagnose PTSD, depressive neurosis, and disturbed sleep pattern b) For each psychiatric disorder identified, render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that the diagnosed psychiatric disorder, to include PTSD, depression, and disturbed sleep pattern, is related to service. i. The examiner should also discuss whether there are any current psychiatric symptoms associated with the Veteran's claimed stressor of fearing for his life during a fire aboard an aircraft carrier. In rendering the requested opinion, the examiner is advised that the Veteran is competent to report in-service injuries, his symptoms, and history. Such reports should be specifically acknowledged and considered in formulating any opinions. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. 3. Schedule the Veteran for a VA examination to address the nature and etiology of any current sleep disability, to include obstructive sleep apnea and disturbed sleep pattern. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination and note this in the examination report. The claims file should be made available for review to the examiner. The examiner should address the following: a) Whether it is at least as likely as not (50 percent of greater probability) that the has a current diagnosis for a sleep disability, to include obstructive sleep apnea and disturbed sleep pattern, that is related to service. The examiner should specifically discuss the Veteran's lay reports of symptoms during and since service. All opinions should be supported by a clear rationale. In rendering the requested opinion, the examiner is advised that the Veteran is competent to report in-service injuries, his symptoms, and history. Such reports should be specifically acknowledged and considered in formulating any opinions. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. 4. After completing the above and conducting any additional development deemed necessary, including obtaining any updated treatment records, readjudicate the claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned 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 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). _________________________________________________ H. SEESEL 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).