Citation Nr: 18152335 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-27 251 DATE: November 21, 2018 ORDER As new and material evidence has been received, the request to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is reopened. Service connection for an acquired psychiatric disability, to include PTSD, is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a September 1992 VA rating decision, service connection for stress was denied; the Veteran was notified of this action and of his appellate rights, but did not file a timely notice of disagreement (NOD) with respect to that issue or submit new and material evidence within a year thereafter. 2. Evidence received since the September 1992 rating decision regarding service connection for an acquired psychiatric disability, to include PTSD, is not cumulative or redundant and raises the possibility of substantiating the claim. 3. The Veteran’s PTSD as likely as not is attributable to claimed in-service stressors. CONCLUSIONS OF LAW 1. The September 1992 rating decision denying service connection for stress is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has been received since the September 1992 VA rating decision to reopen the claim of service connection for an acquired psychiatric disability, to include PTSD. 38 U.S.C. §§ 1110, 1131, 5108, 7104 (2012); 38 C.F.R. §§ 3.156, 3.303 (2018). 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1986 to March 1992. The Board has recharacterized the Veteran’s claim more broadly to an acquired psychiatric disability, to include PTSD, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Before reaching the merits of the claim, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim of stress. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Additionally, while additional service personnel records were associated with the record in February 2015, these official service department records are not relevant to the claim on appeal. See 38 C.F.R. § 3.156(c) (2018). Therefore, the Board has recharacterized this issue accordingly. In October 2017, the Veteran revoked Disabled American Veterans as his power of attorney after the certification of this appeal. The record reflects that written notice was only provided to the Board. The Veteran has not indicated that he desires another representative and demonstrated an intent to individually pursue his claims. Thus, the Board will proceed under the assumption that he wishes to represent himself. Given the decisions below, a detailed explanation of how VA complied with its duties to notify and assist is unnecessary. 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD The Veteran is seeking to reopen a claim of service connection for a psychiatric disorder that was previously denied in a rating decision dated September 1992. The evidence shows that in April 1992 the Veteran initially filed a claim of service connection for stress, which was denied in a September 1992 rating decision on the basis that the evidence failed to show a diagnosed disability for a psychiatric disorder. The Veteran was notified of this action and of his appellate rights, but did not file a timely NOD or submit new and material evidence within a year thereafter. Therefore, the September 1992 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence received since the September 1992 rating decision include an April 2017 private psychiatric evaluation report showing a diagnosis for PTSD. The Board finds that this evidence is new and material to the element of establishing a current disability, which was not established at the time of the September 1992 VA rating decision. As a result, this claim is reopened. 38 U.S.C. § 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may be established for PTSD when there is (1) medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service. 38 C.F.R. § 3.304(f)(3). During the course of the appeal, the Veteran was afforded a VA examination for PTSD in May 2015. Following the clinical evaluation, the examiner concluded the Veteran did not have a diagnosis of PTSD or any other acquired psychiatric disability. Nevertheless, as discussed above, the Veteran has a current diagnosis of PTSD during the appeal period, as noted in the April 2017 private psychiatric evaluation. Diagnoses of PTSD were also noted in VA treatment records dated in September 2014 and March 2015. Review of service treatment records show the Veteran marked “yes” for having or having had a history of depression or excessive worry on a March 1992 Report of Medical History. Review of service personnel records document the Veteran served in Saudi Arabia from September 1990 to April 1991. During the course of the appeal, the Veteran also reported in-service stressor events during his period of active service. At the May 2015 VA examination, he reported being subjected to “scud” missile attacks and that he saw dead people in the road in Kuwait, which he found upsetting. The Veteran reported similar scenarios in a September 2014 mental health consult, specifically noting that during his tour, he saw injured men, mangled, torn apart, dead bodies, in and around the Mash unit, and on the road moving from camp to camp. Moreover, at the April 2017 private psychiatric evaluation, the Veteran reported serving in the war zone during Desert Shield, having a fear of “scuds,” witnessing death and destruction while driving over the highway of death, and that two people in his unit were killed by an accident. Following the April 2017 psychiatric evaluation and accurate factual history of the Veteran’s reported in-service occurrences, the private psychiatrist concluded the Veteran’s PTSD was at least as likely as not related to service and that the Veteran’s reported stressors were based on fear of hostile or terroristic activities. There is no probative contrary medical opinion of record. After a review of the pertinent and probative evidence of record, the Board finds that the Veteran’s PTSD as likely as not is attributable to claimed in-service stressors. After resolving all reasonable doubt in favor of the Veteran, service connection is warranted for an acquired psychiatric disability, to include PTSD. See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.304(f). REASONS FOR REMAND Entitlement to service connection for sleep apnea The Veteran seeks service connection for sleep apnea contending that his condition was caused by service, to include as due to service in the Gulf War. At the outset, the Board acknowledges that the Veteran is currently diagnosed with obstructive sleep apnea which is a known clinical diagnosis and, therefore, not a qualifying chronic disability. As such, the undiagnosed illness presumptive provisions of 38 U.S.C. § 1117 do not apply and other provisions of a qualifying chronic disability due to service in the Gulf War do not provide an exception in this case. Thus, this claim on appeal will be considered on a direct basis below. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Review of VA treatment records shows that the Veteran has a diagnosis of obstructive sleep apnea during the appeal period since February 2014. Review of service treatment records show a complaint of trouble sleeping on the March 1992 Report of Medical History. Moreover, VA treatment records document the Veteran underwent a sleep study from a private medical provider in February 2015 and a CPAP group visit in September 2015. As such, the Board finds that additional development is needed to determine the etiology of a current sleep apnea disorder on a direct basis and to obtain these identified outstanding potentially relevant private treatment records in order to properly adjudicate this claim on appeal. See 38 C.F.R. § 3.303; McLendon v. Nicholson, 20 Vet. App. 79 (2006); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3) (2018)). The matter is REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities or providers for his sleep apnea, to include the Vidant Medical Center Sleep Center, and provide him with the appropriate release forms. Then, make appropriate efforts to obtain (a) any outstanding records so authorized for release from any facility identified by the Veteran and (b) all outstanding VA treatment records dated since May 2017. If these records cannot be located, the AOJ must specifically document the attempts made to locate them and notify the Veteran. 2. Then, schedule the Veteran for an examination with an appropriate clinician for his sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea began during active service or is related to an incident of service, to include his reported trouble sleeping on the March 1992 Report of Medical History and any lay statements provided. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, review the examination report and medical opinions to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the RO must implement corrective procedures. 4. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel