Citation Nr: 18155793 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-05 477 DATE: December 6, 2018 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) (also claimed as insomnia) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, obsessive compulsive disorder, and a mood disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1979 to November 1982, with additional service in the United States Army Reserve from November 1982 to April 2012, to include various periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in February 2015 and April 2015 by Department of Veterans Affairs (VA) Regional Offices (ROs). As relevant, in June 2017, the Board denied the claims presently on appeal. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted the Veteran’s and the Secretary of VA’s (the parties’) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s June 2017 decision for action consistent with the JMPR. The matter now returns to the Board for further appellate consideration. 1. Entitlement to service connection for OSA. The Veteran contends that that he has OSA that had its onset during his military service. In this regard, he reports that his problems sleeping began during service, and OSA was diagnosed during his Reserve retirement examination. In this regard, the record reflects that the Veteran was diagnosed with moderate OSA in September 2014. However, in the June 2017 decision, the Board found that such did not have its onset during active duty or any period of ACDUTRA. In this regard, it was noted that the Veteran’s service treatment records do not contain any complaints, treatment, or diagnosis referable to sleep apnea, insomnia, or any other sleep-related symptoms, and his October 1982 separation examination did not contain any abnormal findings of sleeping problems. Further, the Board observed that Reserve records likewise do not contain any complaints, treatment, or diagnosis referable to sleep apnea, insomnia, or any other sleep-related symptoms. However, the Board acknowledged that, on his April 2012 Report of Medical History conducted in connection with his retirement examination, the Veteran reported problems with going to sleep and waking up during the night. Further, the Board notes that such also reflects a notation of chronic frequent insomnia by the examiner. Nonetheless, the Board found that there were no complaints or symptoms of sleep apnea until June 2014, two months after the Veteran retired from Reserve service, which subsequently resulted in the September 2014 diagnosis of OSA. Further, while a January 2015 letter from Dr. T.A. indicated that the Veteran’s insomnia was more likely related to his sleep apnea, no opinion addressing whether his OSA and/or insomnia had its onset during active duty or a period of ACDUTRA. However, the JMPR noted that, based on the foregoing evidence, the Board should consider whether a VA examination is warranted to determine the nature and etiology of the Veteran’s OSA. In this regard, the Board so finds that such is warranted in light of the Veteran’s current diagnosis of OSA, his report of difficulty with sleep and a finding of chronic frequent insomnia at his April 2012 Reserve retirement examination, and Dr. T.A.’s January 2015 opinion that his insomnia is likely related to sleep apnea. Therefore, on remand, the Veteran should be afforded a VA examination so as to determine the nature and etiology of his OSA. 2. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that he has an acquired psychiatric disorder that had its onset during his military service. In this regard, he was afforded a VA examination in January 2015 in order to ascertain the nature and etiology of such claimed disorder. At such time, he was diagnosed with unspecified depressive disorder and obsessive compulsive disorder. The examiner noted the Veteran’s report that he had some psychological problems or symptoms from childhood that significantly increased after a fellow service member died in a parachute jumping accident during his active service, and that he began mental health treatment in 2004 during his Reserve service. He then opined that the Veteran’s diagnosed acquired psychiatric disorders were at least as likely as not a continuation of symptoms documented in his service treatment records during his Reserve service. Further, in a March 2015 letter, the Veteran’s treating physician, Dr. P.B. noted a diagnosis of persistent depressive disorder and, while an etiological opinion was not offered, she indicated that the Veteran experienced traumatic events in his early years prior to entering military service. In the June 2017 decision, the Board found that the Veteran’s current acquired psychiatric disorder was not incurred in, or the result of, active service or any period of ACDUTRA. In this regard, the Board noted that, while the record contained an article regarding the death of four paratroopers during operation “Gallant Eagle 82,” which the Veteran referenced at his January 2015 VA examination, the service treatment records from his period of active duty were entirely negative for any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder, and his October 1982 separation examination reflected that he was psychiatrically normal upon clinical evaluation. Furthermore, the Board observed that the Veteran’s history of depression was noted in Reserve service records, but the evidence did not demonstrate that his acquired psychiatric disorder had its onset during, or was caused by, any period of ACDUTRA. Specifically, the Board acknowledged that, while the January 2015 VA examiner opined that it was more likely than not that the Veteran’s current psychiatric disorders were a continuation of the symptoms noted in Reserve service records, he did not provide an opinion as to the actual etiology of such disorders. Consequently, the Board found such opinion to be not probative to the question of whether the Veteran’s acquired psychiatric disorder had its onset during a period of ACDUTRA. However, the JMPR noted that, based on the foregoing evidence, the Board should consider whether the January 2015 VA examiner’s opinion raised a theory of aggravation of a preexisting disability. In this regard, the Board so finds that such a theory of entitlement has been raised. Consequently, a remand is necessary in order to obtain an addendum opinion that addresses such matter. The matters are REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his OSA. The record, to include a complete copy of this remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s OSA, diagnosed in September 2014, had its onset in, or is otherwise related to, his period of active duty from November 1979 to November 1982, or any period of ACDUTRA. In offering such opinion, the examiner should consider the Veteran’s his report his problems sleeping began during service, his April 2012 Reserve retirement examination wherein he reported problems with going to sleep and waking up during the night and the examiner’s notation of chronic frequent insomnia, and Dr. T.A.’s January 2015 opinion that his insomnia is likely related to sleep apnea. A complete rationale should be provided for any opinion offered. 2. Return the record to the VA examiner who conducted the January 2015 psychiatric examination so as to offer an opinion as to the nature and etiology of the Veteran’s acquired psychiatric disorder. The record must be made available to the examiner. If the January 2015 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) Identify all currently diagnosed acquired psychiatric disorders, to include unspecified depressive disorder and obsessive compulsive disorder, as noted at the January 2015 VA examination. (B) For each currently diagnosed acquired psychiatric disorder, the examiner should offer as to whether there is clear and unmistakable evidence that the disorder pre-existed the Veteran’s entry to active duty service in November 1979. In offering such opinion, the examiner should consider the January 2015 VA examiner’s finding that he had had some psychological problems or symptoms from childhood, and Dr. P.B.’s March 2015 statement that the Veteran experienced traumatic events in his early years prior to entering military service. (i) If there is clear and unmistakable evidence that the disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran’s disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that the disorder pre-existed service, then the examiner is asked whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is directly related to his active duty service, to include the death of a fellow service member in a parachute jumping accident in March 1982. (C) For each currently diagnosed acquired psychiatric disorders, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such was incurred or aggravated by any period of ACDUTRA. A complete rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel