Citation Nr: 18140734 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 13-28 765A DATE: October 5, 2018 REMANDED Entitlement to service connection for asthma and hemoptysis, to include as due to diesel, asbestos or red lead exposure is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to personal assault and witnessing the assault of another person is remanded. Entitlement to service connection for panic attacks is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1965 to January 1969. The appellant requested a personal hearing before the Board on a VA Form 9 submitted in October 2013. In August 2016, however, he withdrew that request in writing. Therefore, the Board will proceed with the appeal. 38 C.F.R. § 20.704(e) (2017). In March 2014, the Veteran requested that his appeal be expedited due to hardships presented by the severity of his mental illness and various financial difficulties. The Board will accept this request as a motion for advancement on the docket. Given the entirety of the evidence within the claims file showing significant mental illness including periods of incompetency, the Board finds the Veteran to be seriously ill such that sufficient cause is shown for advancement on the docket. Accordingly, advancement on the docket is granted pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). The Board also notes that the September 2013 statement of the case from which this appeal is derived framed the claim of service connection for a sleep condition as addressing both the Veteran’s sleep apnea, as well as his sleep impairments claimed as nightmares, bad dreams, night screams, insomnia and restlessness. However, a subsequent February 2016 rating decision increased the Veteran’s disability rating for his service-connected major depressive disorder with anxiety to 70 percent effective in May 2015, explicitly based in part upon the Veteran’s chronic sleep impairment. As such, symptoms of chronic sleep impairment are already encompassed by the Veteran’s service-connected mental health disability, and he is already receiving compensation for them based on his current 70 percent rating for depression with anxiety. However, the Veteran’s claim of entitlement to service connection for sleep apnea remains outstanding and is considered herein; the issue currently on appeal has been recharacterized as such. 1. Entitlement to service connection for asthma and hemoptysis, to include as due to toxic exposures is remanded. The Board cannot make a fully-informed decision on the issue of service connection for asthma because no VA examiner has opined whether the Veteran’s currently diagnosed asthma is related to the Veteran’s documented reports of difficulty breathing during service, or related to the Veteran’s claimed exposures to diesel fuel, asbestos, and/or red lead during service. See Notice of Disagreement, September 2010 (reporting asbestos and red lead exposures); Correspondence from Veteran, July 2009 (reporting diesel and asbestos exposures). Additionally, the Board notes that in his September 2010 Notice of Disagreement, the Veteran added the symptom of hemoptysis, or the coughing of blood or blood-stained saliva or mucus to his claim of service connection for asthma. See Dorland’s Illustrated Medical Dictionary 853 (31st ed. 2007) (defining hemoptysis). This claimed symptom should also be addressed by a VA medical examination. 2. Entitlement to service connection for sleep apnea is remanded. As above, the Board cannot make a fully-informed decision on the issue of service connection for sleep apnea because no VA examiner has opined whether the Veteran’s currently diagnosed sleep apnea is related to the Veteran’s documented events of breathing difficutly during service. 3. Entitlement to service connection for PTSD, to include as due to witnessing military sexual trauma and due to personal assault, is remanded. In an October 2009 treatment note and a December 2010 statement to VA, the Veteran reported an in-service stressor involving witnessing the military sexual trauma of another individual, then being accosted and threatened as a witness to the event. A separate October 2009 statement also alleges a racially based assault of the Veteran. The Board acknowledges a service treatment record from October 20, where the date stamp shows an illegible year, the Veteran reported to sick call that he was punched in the right side of the neck with swelling present. This appears to cooroborate that some sort of assault had taken place during service while the Veteran was stationed in Norfolk, Virginia. A remand is required to send the Veteran notification as required under 38 C.F.R. § 3.309(f)(5) and allow VA to attempt to corroborate the Veteran’s reported stressors. Then, an examination is needed to determine whether the Veteran has a current diagnosis of PTSD under the DSM-5, and whether such diagnosis is at least as likely as not related to a cooroborated in-service stressor. 4. Entitlement to service connection for panic attacks is remanded. Service connection is currently in effect for major depressive disorder with anxious distress and anxiety. However, the symptoms included as the basis for the current evaluation for this disability do not include panic attacks as of the February 2016 rating decision that assigned the current 70 percent rating. Thus, panic attacks remain viable for consideration for service connection. The Board finds it appropriate to obtain a medical opinion to determine whether the Veteran has a diagnosed panic disorder, or whether panic attacks are a symptom of his already service-connected psychiatric disability. Generally speaking, when it is not possible to separate the effects of a service-connected condition versus a nonservice-connected condition, reasonable doubt will be resolved to find such signs or symptoms of disability as being attributable to a service-connected disability. See, e.g., Mittleider v. West, 11 Vet. App. 181 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any asthma and hemoptysis. The examiner must opine whether any of these currently diagnosed conditions is at least as likely as not related to an in-service injury, event, or disease, including the documented difficulty breathing during service, or the Veteran’s claimed toxic exposures. 2. Schedule the Veteran for an examination to determine the nature and etiology of any sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the documented reports of breathing difficulties during service. 3. Send the Veteran notice required for PTSD claims based on personal assaults, and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressors based on personal assault, including his claims of racially based assault and witnessing the military sexual trauma of another sailor. If more details are needed, contact the Veteran to request the information. 4. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether the evidence of record, including the Veteran’s lay statements, statements made by others, or the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. The examiner is also asked to opine if the Veteran has a diagnosed panic disorder, or if he exhibits panic attacks as a symptom of his service-connected major depressive disorder with anxiety. If any panic attack condition is not found to be a part of the currently service-connected major depressive disorder with anxiety, then the examiner should attempt to distinguish any signs, symptoms and impairment attributable to such panic condition from the Veteran’s service-connected disability with appropriate rationale. If the manifestations cannot clearly be distinguished, the examiner should so state. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald