Citation Nr: 18141140 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-24 315 DATE: October 9, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and adjustment disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2006 to September 2006, and from April 2009 to April 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends his sleep apnea had its onset during service. He underwent a September 2010 sleep study in which he was diagnosed with obstructive sleep apnea. While the Veteran’s service treatment records are negative for a diagnosis of sleep apnea, the Veteran’s diagnosis of sleep apnea comes less than a year after separation from service. Furthermore, the Veteran indicated in a December 2014 statement that prior to his deployment, he never had sleep apnea. In addition, the September 2010 sleep study report reflects that the Veteran had a history of sleep apnea symptoms. Thus, there is a current diagnosis of obstructive sleep apnea and at least an indication that sleep difficulties may have had their onset in service. As the Veteran has not been afforded a VA examination for this claim, the Board finds that the low threshold of McLendon has been met. Thus, he must be provided an examination to determine the etiology of his sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and adjustment disorder is remanded. The Veteran claims entitlement to service connection for PTSD. The Board has re-characterized this claim as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression and adjustment disorder, as these are among the Veteran’s current psychiatric diagnoses. Clemons v. Shinseki, 23 Vet. App. at 5. Specifically, the Veteran has claimed that while in service, a fellow soldier was crushed by a 3-ton guard gate, and that this incident affected the Veteran significantly. See October 2011 statement. The Veteran repeated in a March 2013 VA examination that his friend was killed while they were on deployment. The Veteran also cites the emotional toll of losing his mother while he was on deployment. An initial VA examination, conducted in March 2013, reflects that the examiner assessed the Veteran to have no psychiatric diagnosis. In fact, the examiner specifically stated that the Veteran does not meet the DSM IV criteria for PTSD. Notably, although the Veteran reported stressors of his mother’s death and a fellow service member’s death while he was on deployment, the VA examiner only considered the claimed stressor of the Veteran’s mother’s death. The claims file contains a September 2016 examination from a private psychologist. The doctor clearly diagnosed the Veteran with PTSD. In relevant part, the Veteran reported that his friend in the military was killed while they were deployed, and that his mother died while he was on deployment as well. The examiner assessed that the criteria for PTSD were met. Furthermore, the psychologist opined that the Veteran’s PTSD is more likely than not related to his military service, reasoning that the opinion was based on a review of the Veteran’s medical records, an interview, and further, that the Veteran’s symptomatology is consistent with PTSD which is reported and recognized to be secondary to service. The Board acknowledges that this rationale is rather conclusory, as it essentially reiterates the psychologist’s opinion, adding only that the opinion is based on a thorough review of the Veteran and his medical record. Finally, the Veteran was afforded a VA examination in November 2016. This examiner too opined that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD, instead diagnosing the Veteran with adjustment disorder with mixed anxiety and depressed mood. The examiner explained that the Veteran was not currently reporting a stressor that meets the criteria for PTSD, and that his reporting was inconsistent. The examiner opined that the Veteran’s current symptoms appear best accounted for by recent stressors of divorce, a custody battle, child support payments, and an arrest for violating a restraining order. However, the Board notes that the examiner did not address the positive private opinion which was in the claims file at the time of examination. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that VA is now required to apply concepts and principles set forth in DSM-5 to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. 79 Fed. Reg. 45094 (Aug. 4, 2014). In this case, the Veteran filed a substantive appeal for his PTSD claim in July 2015, and it was subsequently certified to the Board in August 2016. Therefore, this claim is governed by DSM-5 criteria. The Board finds that the 2013 VA examination is inadequate for adjudication purposes. The Board notes that the examiner only considered one reported stressor, that of the death of the Veteran’s mother while he was on deployment. The examiner failed to consider the death of the Veteran’s friend while in service, a stressor which was acknowledged in the same VA examination. Furthermore, the Veteran’s medical record contains a diagnosis of PTSD which pre-dates this examination, yet this diagnosis is not acknowledged or discussed by the examiner. The Board also finds significant deficiencies in the November 2016 VA examination. As previously noted, the examiner failed to address the positive private examination and opinion, which was of record at the time of the examination. Given these deficiencies in the VA examinations of record, as well as the conflicting opinions between the private and VA examinations, the Board finds that further development is required. On remand, a new VA examination must be obtained to correct these omissions, and reconcile the evidence. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file and outstanding VA and private treatment records. 2. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his sleep apnea. All necessary tests and studies related to the claim should be conducted. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current sleep apnea had its onset during, or was otherwise related to, service. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, schedule the Veteran for a VA examination to assess the nature and etiology of any acquired psychiatric disorder found to be present. All indicated tests and studies should be accomplished and the findings reported in detail. a. The examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not that any diagnosed psychiatric disorder, to include any diagnosed at any point during the period on appeal, either began during or was otherwise caused by the Veteran’s service. b. The examiner should offer an opinion on whether the Veteran meets the DSM-5 criteria for a diagnosis of PTSD. c. If PTSD is found, the stressor relied on must be noted. All reported in-service stressors must be considered, including but not limited to the death of the Veteran’s service buddy and his mother. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. If a diagnosis any psychiatric disorder is not made, the examiner must reconcile such a finding with those made in the Veteran’s private and VA treatment medical records. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel