Citation Nr: 1821791	
Decision Date: 04/10/18    Archive Date: 04/19/18

DOCKET NO.  08-06 599	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for a sleep disorder, to include sleep apnea.

3. Entitlement to a rating in excess of 10 percent for service-connected patellofemoral pain syndrome with degenerative joint disease (DJD) of the right knee.

4. Entitlement to a rating in excess of 10 percent for service-connected patellofemoral pain syndrome with DJD of the left knee.


REPRESENTATION

Appellant represented by:	Kathy A. Lieberman, Attorney at Law

ATTORNEY FOR THE BOARD

J. Nichols, Counsel


INTRODUCTION

The Veteran served on active duty from July 1981 to July 2001.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

By way of history, in May 2012, the Board, in part, denied service connection for an acquired psychiatric disorder, sleep disorder, and increased ratings for the bilateral knees.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In November 2013, the Court issued a memorandum decision partially vacating the Board's decision, and remanded the matter to the Board for further proceedings consistent with its decision.  In August 2014, the Board remanded these four issues for further evidentiary development.

The Veteran's attorney submitted additional evidence in February 2018 without an accompanying waiver of RO consideration.  Given the full grant of the appeal for the issue of service connection for an acquired psychiatric disorder, to include PTSD, RO consideration of the evidence at first instance is not necessary.

The appellate claim involving a psychiatric disorder has been recharacterized more broadly, given the Veteran's ongoing contentions and the current psychiatric diagnoses of record, including PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Such is the case for the sleep disorder issue, as sleep apnea has been diagnosed on the record since the claim was filed.

The issues of service connection for a sleep disorder and the increased ratings claims for the knees are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran has a diagnosis of PTSD related to his combat service.  


CONCLUSION OF LAW

The criteria to establish service connection for PTSD, which also encompasses other acquired psychiatric disorders and symptoms related to depression and anxiety, are met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking service connection for an acquired psychiatric disorder, to include PTSD.

At the outset, the Board notes that in its August 2014 Remand, the RO was instructed to obtain a translation for medical documents received by VA in 2014 (VBMS indicates a receipt date of March 7, 2014 for these documents).  However, translation was not sought.  In any event, the Board finds that the existing evidence of record is sufficient to justify a grant of PTSD.  As this is a full grant of the appeal sought, any duty to assist deficiency is a harmless error.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

To establish service connection for PTSD, generally, a veteran must show: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders (DSM); (2) medical evidence establishing a link 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).

Here, in applying the law to the facts of the case, the Board finds that the evidence is at least in a state of relative equipoise on all material elements of the claim.

First, a diagnosis of PTSD is established, despite the fact that there has been some dispute as to the validity of such diagnosis.  The Veteran underwent a VA PTSD examination in December 2016.  While the examiner diagnosed the Veteran with major depression and found that the Veteran met the DSM-V stressor criteria for PTSD, he found that the Veteran did not fulfill the "symptoms criteria" for a PTSD diagnosis.  On the other hand, Dr. C.L.R., Ph.D. and Licensed Clinical Psychologist rendered an opinion on behalf of the Veteran in June 2014.  She reviewed the pertinent records from the Veteran's file, to include his military service records and medical treatment records, and she opined that the symptoms documented in the records "unequivocally support a diagnosis of PTSD, which is more likely than not related to his military service in the Persian Gulf."  See June 2014 Dr. C.L.R. Letter.

The VA examiner's explanations as to why the Veteran does not fulfill the symptoms criteria under each criterion for a PTSD diagnoses are not sufficiently compelling to undermine the positive diagnosis which details each criterion and mentions specific facts from the Veteran's history to demonstrate how he meets each criterion.  Accordingly, the existence of a present disability of PTSD is established when reasonable doubt is resolved in the Veteran's favor.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Next, an in-service stressor is established.  The Veteran saw his fellow servicemen die in combat and he provided specifics as to these incidents.  See VA Form 21-0781 Statement in Support for Service Connection for PTSD.  

If it is established through military citation or other supportive evidence that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(2).

In this case, the Veteran's statements are consistent with the circumstances of his service.  The Veteran is in receipt of the Bronze Star medal as his unit was deployed to Southwest Asia in combat operations associated with Operation Desert Storm.  His infantry division was also awarded the Valorous Unit Award for extraordinary heroism in ground combat during Operation Desert Storm.  See Military Service Records.  As such, the Veteran's credible testimony establishes this second element.

Finally, there is a link, established by medical evidence, between the current symptoms and the in-service stressor.  

On this question, the Board again points to the comprehensive positive opinion provided by Dr. C.L.R.  She outlined the Veteran's psychiatric and military history, considered his specific symptoms and stressor, and provided a well-written opinion supporting a link between the PTSD and the Veteran's service.  Futhermore, the December 2016 VA examiner also stated that the Veteran's stressor (Desert Storm experience) contributed to the Veteran's PTSD diagnosis, even though he explained that the Veteran's symptoms did not meet each criterion.  There appears to be no doubt that the stressful experience caused the symptoms that this examiner indeed identified.

Again, the benefit of the doubt applies, and the Board resolves any doubt in favor of the Veteran on the element of nexus.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Service connection is warranted for an acquired psychiatric disability, to include PTSD.

As a final matter, the Board notes that the record reflects various other psychiatric diagnoses.  For instance, during the lengthy appeal period, the Veteran has been shown to have diagnoses of mixed mood disorder, adjustment disorder with anxiety, anxiety disorder not otherwise specified, dysomnia, single episode major depression (with and without psychosis), affective disorder, and major depressive disorder.  Dr. C.L.R. acknowledges that the record has not contained a link for these disorders and service; however, she still noted that there was some suggestion of PTSD as early as 2004.  She summarized the Veteran's disability picture as having long-entailed some symptoms of PTSD as well as depression and anxiety.  

The Board finds, based on Dr. C.L.R.'s explanation, that the grant of service connection for PTSD comprehensively encompasses all associated symptoms, including that of the depression, anxiety, and related acquired psychiatric disorders.  See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons, 23 Vet. App. 1.


ORDER

Service connection for an acquired psychiatric disorder, to include PTSD, is granted.


REMAND

Remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.   

First, the Board finds that remand is necessary to obtain an examination and a new comprehensive medical opinion for the sleep apnea issue.  While a medical opinion was provided in December 2016 (albeit inadequate), an examination was not conducted pursuant to the August 2014 Board Remand.  See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  The December 2016 VA examiner also issued a conclusory opinion with absent rationale stating that the diagnosed sleep apnea was unrelated to service or to any psychiatric disorder.  As such, this opinion is inadequate.  Furthermore, the Board would like the new examiner to properly consider the literature on the link between sleep apnea and PTSD that was supplied by the Veteran's attorney in February 2018 (specifics below).

Second, the issues involving increased ratings for the knees must be remanded for compliance with a recent Court case following the August 2014 Board Remand.  In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court found that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion as to the degree of such impairment in applying the principles set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995).  In this regard, the Court noted that VA's Clinician's Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flares from veterans.  Id. at 35.  The Court found that the examination in question was inadequate because the examiner, although acknowledging that the Appellant was not then suffering from a flare of any of his conditions, failed to ascertain adequate information from him, i.e., frequency, duration, characteristics, severity, or functional loss, regarding his flares by alternative means.  Id. at 35-36.  

Similarly, the December 2016 VA examiner also did not obtain those details from this Veteran nor did she indicate whether such information could be gleaned from medical records or other sources available to her.  In fact, she provided a generalized statement essentially indicating that she is unable to assess without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability with flare-ups (the Veteran admitted to having flare-ups of his knees).   The Court in Sharp has rejected these generalized statements especially when they are unaccompanied by an explanation as to why a non-speculative opinion cannot be offered.  As such, new opinions should be requested from the VA clinician who conducts the VA examination addressing the Veteran's claims for increased ratings for the right and left knee disorders.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination to address the etiology of his sleep apnea and any other sleep disorder present.  The electronic record should be made available to each examiner.  

Note: The record contains a diagnosis of obstructive sleep apnea.  See January 2009 Private Sleep Clinic Record.  

In answering the following questions, please consider and discuss the following literature on the link between PTSD and sleep apnea as it applies to this Veteran's case: (1) Study: "Obstructive Sleep Apnea and PTSD among OEF/OIF/OND Veterans" (May 2015 Issue of the Journal of Sleep Medicine) and (2) "PTSD Sleep Research: An Update" by The National Center for PTSD (Fall 2004, PTSD Research Quarterly).  See February 2018 Correspondence.

(i) Are there any other sleep disorders other than obstructive sleep apnea that has been present at any point since July 2006?  If so, please include these diagnoses when answering the remaining questions below.

(ii) Is it at least as likely as not (i.e., to a 50 percent or greater degree of probability) that the sleep apnea is related to any event in service? 

(iii) Is it at least as likely as not (i.e., to a 50 percent or greater degree of probability) that the service-connected PTSD caused the Veteran's sleep apnea? 

(iv) Is it at least as likely as not (i.e., to a 50 percent or greater degree of probability) that the service-connected PTSD aggravated (i.e., worsened in severity beyond the normal progression) the Veteran's sleep apnea?

If aggravation is found, the examiner should attempt to quantify the degree of any additional disability resulting from the aggravation.  

In answering the above questions, the examiner should articulate the reasoning underpinning his or her conclusions.  That is, identify what facts and information support the opinion(s) provided, and explain how those facts and information justify the opinion(s).

2. Arrange for VA examinations to determine the nature, severity, and extent of the current pathology associated with the service-connected knee disabilities.  The electronic record should be made available to the examiner.  Range of motion testing in active motion, passive motion, weight-bearing, and nonweight-bearing in both knees should be accomplished.  If any examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examiner should describe the functional limitations resulting from the service connected right and left knee disabilities, to include during flare-ups.  If flare-ups are not shown during either examination, the examiner should conduct efforts to obtain adequate information regarding the impairment resulting from flare-ups (consistent with the VA's Clinician's Guide) by alternative means, to include statements as to any such impairment by the Veteran himself.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
LAURA E. COLLINS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs