Citation Nr: 18140584 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-05 113 DATE: October 3, 2018 REMANDED Entitlement to service connection for a sleep disorder, to include sleep apnea, and to include as secondary to service-connected unspecified anxiety disorder, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial evaluation in excess of 10 percent for chronic left ankle strain is remanded. Entitlement to an initial evaluation in excess of 10 percent for an unspecified anxiety disorder is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from February 1966 to March 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in April 2013 and January 2016 by the Department of Veterans Affairs (VA) Regional Office (RO). In the April 2013 rating decision, the RO, in pertinent part, granted service connection for chronic left ankle strain and assigned a 10 percent evaluation, effective March 16, 2012; denied service connection for anxiety disorder, not otherwise specified; denied service connection for PTSD; and denied SC for a sleep disorder. The Veteran appealed for a higher initial evaluation for chronic left ankle strain and for service connection for anxiety disorder, PTSD, and a sleep disorder. In the January 2016 rating decision, the RO granted service connection for unspecified anxiety disorder and assigned 10 percent evaluation, effective March 16, 2012. The Veteran appealed for a higher initial evaluation. Following the February 2018 supplemental statement of the case, the Veteran submitted additional evidence in support of his appeal. The Veteran filed his substantive appeals in February 2016 and November 2017. Accordingly, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board, because the Veteran did not request in writing that the Agency of Original Jurisdiction initially review such evidence. See 38 U.S.C. § 7105(e)(1). 1. Entitlement to service connection for a sleep disorder, to include sleep apnea, and to include as secondary to service-connected unspecified anxiety disorder, is remanded. The Veteran contends that his currently diagnosed sleep apnea was caused or aggravated by his service-connected unspecified anxiety disorder. Records show that the Veteran was diagnosed with obstructive sleep apnea in 2013. According to a medical journal article submitted by the Veteran, there is a relationship between obstructive sleep apnea and anxiety disorders. However, the record does not include an etiological opinion addressing whether the Veteran’s sleep apnea was caused or aggravated by his service-connected unspecified anxiety disorder, and the available competent evidence is insufficient to decide the claim. As the evidence suggests that the Veteran’s sleep apnea may be related to his service-connected unspecified anxiety disorder, a remand is required to provide a VA opinion to determine the etiology of his sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for PTSD is remanded. In March 2012, the Veteran submitted a statement in support of his claim for PTSD (VA Form 21-0871), in which he described being traumatized from witnessing dead newborn babies, who were left by Korean prostitutes, in the mud flats by the sea wall that he patrolled. He also described three incidents of being placed on high alert following incidents involving North Korean attacks that he did not witness. In an April 2013 Formal Finding memorandum, the RO found that there was insufficient information to research the Veteran’s reported stressors. In an October 2016 statement, the Veteran reported that while serving in Korea, he experienced active combat, including attacks on his unit while in transit. He said that when he drove, he would periodically remember the attacks and become anxious. He also had nightmares about the attacks. The Veteran contends that his PTSD is related to a fear of hostile military activity under 38 C.F.R. § 3.304(f)(3). See June 2015 statement. The record does not include any documentation that VA made any attempts to determine whether sufficient information had been provided to research the Veteran’s reported stressor. On remand, VA should perform the necessary steps to verify the Veteran’s stressors. Additionally, the Board notes that VA treatment records include multiple diagnoses for PTSD, but no underlying stressor was identified. See August 2012, November 2012, August 2013 and November 2013 VA treatment records. After obtaining additional information from the Veteran regarding his reported exposure to attacks on his unit while in transit, the Veteran should be provided a VA examination to confirm his PTSD diagnosis, to address the medical records diagnosing PTSD, and to provide an etiological opinion. 3. Entitlement to an initial evaluation in excess of 10 percent for chronic left ankle strain is remanded. In light of a recent case, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board finds that the July 2015 and January 2018 VA examinations provided to evaluate the Veteran’s service-connected chronic left ankle strain are inadequate rating purposes. In Sharp, the Court determined that it was not sufficient for an examiner to provide that a requested opinion regarding whether the Veteran had additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995), was not possible without resorting to speculation based on the fact that the examination was not performed during a flare. The Court found that an examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. In this case, the July 2015 VA examiner determined that the examiner was unable to say without mere speculation whether or not the Veteran’s pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. The July 2015 VA examiner found that it would be mere speculation to determine the potential amount of range of motion loss without seeing the Veteran during an actual flare. The January 2018 VA examiner determined that the examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or with flare-ups. The January 2018 VA examiner found that there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Based on the holding in Sharp, a remand is required obtain a new VA examination of the Veteran’s chronic left ankle strain. 4. Entitlement to an initial evaluation in excess of 10 percent for an unspecified anxiety disorder is remanded. The Veteran’s last VA examination for his unspecified anxiety disorder was in July 2015. In an October 2016 statement, the Veteran indicated that the July 2015 VA examination was not an accurate reflection of his mental health status. He said that he was unable to interact with people in social or occupational situations, he was unable to concentrate when in public due to his anxiety, and he had to let people walk in front of him so he could keep watch. Moreover, in a July 2018 statement, the Veteran’s wife described how, less than a year ago, she felt like the Veteran was “having a nervous breakdown because he started having crying spells.” She stated that the Veteran was angry all the time and his anger was always directed at her. His temper made her feel like she had to always be on guard and extremely careful about what she said to him. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326 (a). As the evidence suggests that the Veteran's unspecified anxiety disorder may have worsened since his last VA examination, and his last VA examination was reportedly not an accurate assessment of his service-connected disability, a remand is required to determine the current severity of his service-connected disability. 5. Entitlement to a TDIU is remanded. In December 2013, the Veteran submitted a Notice of Disagreement (NOD) stating that he had to stop working because of his service-connected chronic left ankle strain. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU rating is part of an increased rating claim when such issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue of a TDIU is raised by the record, is part and parcel of the increased rating claim, and is properly before the Board. Id. As the issue of whether the Veteran is entitled to a TDIU may be affected by the outcome of his higher initial evaluation claims for chronic left ankle strain and unspecified anxiety disorder and his service connection claims for a sleep disorder and PTSD, the issues are inextricably intertwined. The Veteran’s TDIU claim cannot be decided until the higher initial evaluation and service connection claims have been considered. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain all outstanding treatment records for the Veteran’s sleep disorder, mental health disorders, including unspecified anxiety disorder and PTSD, and chronic left ankle strain. 2. Request that the Veteran provide additional information regarding the reported combat attacks on his unit while in transit while stationed in Korea. Then, if the Veteran provides sufficient information, contact all appropriate sources and request that research be conducted to verify such stressor. 3. Schedule the Veteran for an examination by an appropriate clinician and obtain an opinion regarding whether it is at least as likely as not that the Veteran’s PTSD was etiologically related to his active duty service, to include his reported exposure to combat attacks on his unit in transit while serving in Korea. In providing the above opinion, the examiner should address the 2012 and 2013 VA treatment records in which the Veteran was diagnosed by his VA psychiatrist with PTSD. 4. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not proximately due to, or aggravated beyond its natural progression by, his service-connected unspecified anxiety disorder. In providing the above opinion, the examiner should consider the medical journal article submitted by the Veteran in July 2018 suggesting a link between obstructive sleep apnea and anxiety disorders. 5. Schedule the Veteran for an examination to determine the current severity of his service-connected chronic left ankle strain by an appropriate clinician. To the extent possible, the examiner should provide current findings regarding all symptoms associated with the service-connected chronic left ankle strain and should opine as to its severity. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left ankle symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should comment on the extent of any functional impairment caused by the Veteran’s service-connected chronic left ankle strain, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. 6. Schedule the Veteran for an examination to determine the current severity of his service-connected unspecified anxiety disorder by an appropriate clinician. To the extent possible, the examiner should provide current findings regarding all symptoms associated with the service-connected unspecified anxiety disorder and should opine as to its severity. The examiner should comment on the extent of any functional impairment caused by the Veteran’s service-connected unspecified anxiety disorder, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. 7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Journet Shaw