Citation Nr: 18141028 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 13-09 455A DATE: October 9, 2018 ORDER Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and adjustment disorder, is remanded. FINDINGS OF FACT 1. Clear and unmistakable evidence shows the Veteran’s sleep apnea preexisted service, but there is no evidence that establishes his preexisting sleep apnea clearly and unmistakably was not aggravated during service. 2. The Veteran was treated for symptoms of sleep apnea during service and medical evidence indicates a link between the in-service symptoms and his current disability. CONCLUSIONS OF LAW 1. The presumption of soundness on entry to service as to sleep apnea has not been rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 2. The criteria to establish service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to August 1984, June 1985 to August 1985, December 1990 to June 1991, and August 2011 to May 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision. The Veteran testified at a March 2015 videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In a May 2015 decision, the Board found that new and material evidence had been submitted to reopen the claim of service connection for an acquired psychiatric disorder. The Board remanded the claims of service connection for an acquired psychiatric disorder and sleep apnea for further development, to include new examinations. Entitlement to Service Connection for Sleep Apnea The Veteran contends that his sleep apnea was incurred or aggravated in his last period of active service (i.e., August 2011 to May 2012). However, medical evidence suggests that the Veteran had preexisting symptoms of sleep apnea that were possibly aggravated by service. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, no sleep defect was noted on the Veteran’s September 2011 pre-deployment health assessment. Thus, the presumption of soundness attaches, and the Veteran’s sleep condition on entry into his last period of active duty is presumed sound unless the presumption of soundness is rebutted. Thus, the Board will consider whether the Veteran’s sleep apnea preexisted the third period of active service, and whether the Veteran’s sleep apnea was aggravated beyond the natural progress of the disease in the third period of active service from August 2011 to May 2012. Because a preexisting sleep apnea disorder was not noted on the September 2011 pre-deployment health assessment, the burden shifts to VA to demonstrate by clear and unmistakable evidence both that sleep apnea preexisted service and was not aggravated by during the third period of active service. In an April 2014 VA examination report, the VA examiner opined that there was clear and unmistakable evidence that the Veteran had chronic nasal obstruction and trouble sleeping prior to his deployment. However, the examiner did not comment on whether the evidence showed that the preexisting sleep apnea clearly and unmistakably was aggravated beyond its natural progression by an in-service injury, event, or illness. As such, in May 2015, the Board remanded the issue to obtain an adequate opinion regarding whether the Veteran’s sleep apnea clearly and unmistakably existed prior to entrance into active duty in August 2011 and, if so, whether the evidence clearly and unmistakably showed that preexisting sleep apnea was not aggravated by the Veteran’s military service. A November 2015 VA examination opined that sleep apnea more likely as not existed prior to entrance into active duty in August 2011. The examiner used the incorrect legal standard (at least as likely as not), rather than the clear and unmistakable evidence standard instructed in the Board remand; therefore, the Board finds the opinion rendered to be inadequate. For these reasons, the presumption of soundness has not been rebutted, as there is not clear and unmistaken evidence that the Veteran’s preexisting sleep apnea was not aggravated by service, and the Veteran’s claim must be considered a normal claim for service connection without consideration of preexisting sleep apnea at the time of entrance into active service in August 2011. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran has stated that he experienced excessive sleepiness and required medication to sleep during his last period of service from August 2011. In addition, he reported that people who slept around him reported that he snored loudly. Service treatment records show that the Veteran was prescribed trazodone to treat sleep issues. The post-service medical evidence indicates the Veteran sought treatment for sleep problems and was diagnosed with obstructive sleep apnea. He underwent a turbinoplasty in May 2011 and was noted to have chronic nasal congestion in July 2011. Therefore, there is evidence of nexus between the Veteran’s in-service sleep apnea and his current disability. In light of the evidence of record, including the Veteran’s lay statements and the service and post-service treatment records, the Board affords the Veteran the benefit of the doubt and finds that service connection is warranted for sleep apnea. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to Service Connection for an Acquired Psychiatric Disorder The Board regrets any further delay in this case, but finds that further development is necessary to comply with the terms of the May 2015 remand directives. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. The May 2015 remand directives required a new VA examination to identify the Veteran’s currently diagnosed psychiatric disorders and discuss the etiology and presence or absence of PTSD, depressive disorder, anxiety disorder, and adjustment disorder. Unfortunately, the new VA examination undertaken in October 2015 neither discussed the presence or absence of previously diagnosed depressive disorder nor the etiology of previously diagnosed adjustment disorder. As a result of this Stegall violation, further development is needed. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination. The complete claims file must be reviewed in conjunction with the examination, and the examiner must state that such was accomplished. Any testing deemed warranted should be accomplished. All indicated tests and studies should be performed. The examiner should identify the Veteran’s currently diagnosed psychiatric disorders. The presence or absence of PTSD, depressive disorder, anxiety disorder, and adjustment disorder should be discussed. The examiner should consider that the requirement of a current disability is satisfied if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007) If PTSD is diagnosed, the examiner is asked to state whether it is at least as likely as not (a 50 percent probability or greater) that PTSD is related to the Veteran’s active duty service, including having been attacked with shovels during basic training in 1984 by several other soldiers, and suffering a concussion as a result of this incident. If a psychiatric disorder other than PTSD is diagnosed, the examiner is asked to state whether it is at least as likely as not that the currently diagnosed psychiatric disorder was incurred in, or is otherwise etiologically related to, any period of the Veteran’s active duty service. In rendering this opinion, the examiner must specifically consider and address the Veteran’s service treatment records and post-service medical records. Service treatment records show the Veteran being treated for an adjustment disorder in March 2012. They also show that in April 2012, the Veteran was placed on physical profile for anxiety. The examiner must also address the lay evidence of record, including the Veteran’s contentions that his alcoholism did not manifest until after his most recent deployment in 2011. In providing the opinion, the examiner must explain the rationale for all opinions given. A full and complete explanation for any opinion expressed is required. If the examiner, is unable to provide the opinion, requested, then he or she must state so and provide an explanation as to why an opinion cannot be given. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel