Citation Nr: 1825680	
Decision Date: 04/26/18    Archive Date: 05/07/18

DOCKET NO.  14-36 091	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1. Entitlement to service connection for posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Wounded Warrior Project


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M. Nye, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 2002 to May 2010.

This case comes to the Board of Veterans' Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  In that decision, the RO denied service-connected compensation for sleep apnea and for PTSD.  The Veteran timely appealed both rulings to the Board.

It may be useful to clarify why the Board has described the psychiatric claim as an appeal of the denial of service connection for PTSD.  In general, regardless of how a claimant for benefits describes his or her specific diagnosis, a claim for service connection for PTSD is broadly construed as a claim for any acquired psychiatric disorder which is related to service.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009).  But in this case, after the Veteran appealed the denial of his psychiatric claim in January 2014, he filed a separate claim seeking service-connected compensation for depression.  In April 2016, the RO issued a rating decision granting service connection for persistent depressive disorder (dysthymia) with anxious distress, claimed as major depression, and assigned an initial 70 percent rating.  The amount of compensation for all mental disorders is determined by reference to essentially the same rating criteria.  See 38 C.F.R. § 4.130 (2017).  But it is not absolutely clear that the Veteran's PTSD claim is moot.  At least one mental disorder examination report attempts to distinguish the symptoms attributable to separate diagnosed mental disorders.  Moreover, is clear from the Veteran's hearing testimony and his decision to continue to seek benefits for PTSD, even after the RO granted benefits for another mental disorder, that he intends to appeal the denial of a separate rating for PTSD.  Under these circumstances, describing the psychiatric issue as a claim for service connection for PTSD is consistent with Clemons.


In February 2018, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.


FINDINGS OF FACT

1. The evidence is approximately evenly balanced as to whether the Veteran currently has a diagnosis of PTSD which is related to his experience of traumatic events in service.

2. The evidence is approximately evenly balanced as to whether the Veteran's current sleep apnea was incurred during his active duty service.


CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD have been met.  38 U.S.C. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304 (2017).

2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for sleep apnea have been met.  38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. § 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Because the Board is granting both of the claims decided today, further discussion of the VCAA with respect to that claim is unnecessary.  


					Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  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 - or "nexus" - between the present disability and the disease or injury incurred or aggravated during service.  See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

PTSD

During his active duty service, the Veteran was deployed to Iraq.  He attributes his claimed PTSD to several stressful events which occurred during these deployments.  On at least one occasion, the Veteran was fired on when traveling between military bases.  In his hearing testimony, he described a separate incident in which the base where he was stationed came under attack by enemy mortars.  The Veteran testified that one of the mortar rounds exploded approximately 100 feet from him.  He also described traveling in a convoy of vehicles when an improvised explosive device (IED) destroyed a vehicle only one or two vehicle-lengths away from the vehicle in which the Veteran was traveling.  

Given the Veteran's extensive and documented service in Iraq, and the well-known characteristics of the insurgency in Iraq at the time when the Veteran was deployed there, the Board finds that the claimed PTSD stressors are consistent with the circumstances, conditions, and hardships of the Veteran's service.  38 C.F.R. § 3.304(f) (2017).  Consistent with this finding, the Board concludes that these stressful events actually occurred.

To help decide this claim, the RO arranged for several mental disorders examinations.  With one exception, none of the examiners expressed doubts about whether the Veteran actually experienced stressful events in Iraq.  The examiners also essentially agreed that these experiences meet the standard for a Criterion A stressor -a necessary, but not sufficient, condition for a PTSD diagnosis.  

Instead, the significant dispute between the mental health professionals was whether the Veteran's current mental disorder is properly diagnosed as PTSD.  Since the Board has accepted the evidence of in-service stressors - and given that the Veteran already receives service-connected disability compensation for persistent depressive disorder (dysthymia) - the success of the remaining claim depends on the Board's assessment of the respective experts' opinions on the issue of whether the Veteran's current symptoms also support a diagnosis of PTSD.

The criteria for a PTSD diagnosis are explained in the Diagnostic and Statistical Manual of Mental Disorders.  Because the Veteran's PTSD claim was received by the RO before August 4, 2014, the Fourth edition of this treatise (DSM-IV) applies to this appeal.  Because the separate claim for major depression was received after that date, many of the later examination reports and medical records apply the criteria described in the Fifth edition (DSM-5).  It is clear from the respective examiners reports, however, that both sets of criteria require symptoms of "re-experiencing", "avoidance" and "hyperarousal."  

The RO arranged for the Veteran to be examined by a psychologist in November 2013.  The psychologist diagnosed two separate mental disorders - schizoaffective disorder and alcohol dependence, describing the latter being as in remission.  The examiner acknowledged the stressors concerning the convoy and the mortar attack on the Veteran's base.  Somewhat confusingly, she noted that both were related hostile military or terrorist activity, but, in her opinion, neither qualified as a Criterion A stressor under DSM-IV.  Part 4 of the Report ("PTSD Diagnostic Criteria") suggests that, according to the psychologist, the Veteran had not been exposed to a traumatic event.  The psychologist further found that the Veteran did not meet Criterion B - in other words, he did not persistently re-experience the traumatic event; he did not meet Criterion C - i.e., his symptoms did not include the persistent avoidance of stimuli associated with the event; nor did he meet Criterion D, that is, he did not have persistent symptoms of increased arousal, such as difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance or exaggerated startle response.  

According to the November 2013 examining psychologist, it was less likely than not that the Veteran had PTSD.  To support this opinion, the examiner relied on perceived inconsistent statements in the Veteran's medical records, including the lack of PTSD symptoms in the Veteran's post-deployment assessments, separation examination, and report of medical history.  

The RO obtained an opinion from a VA psychologist in January 2014.  Unlike the November 2013 opinion, the January 2014 opinion indicates that the stressful events that the Veteran experienced in service "do in fact meet DSM-IV and DSM-5 PTSD Criterion A requirements."  Nevertheless, the January 2014 examiner believed that schizoaffective disorder was the more appropriate diagnosis because of records indicating the absence of re-experiencing, avoidance, or arousal symptoms.  

In March 2014, the Veteran submitted a disability benefits questionnaire (DBQ), which had been completed by a VA psychologist who, according to his post-service VA medical records, has treated the Veteran during many individual therapy sessions.  In the March 2014 DBQ, the psychologist diagnosed three separate mental disorders: (1) schizoaffective disorder, depressive type; (2) PTSD; (3) alcohol use disorder, in full remission.  The psychologist attributed hallucinations and depressive symptoms to schizoaffective disorder.  According to the psychologist, distressing dreams, paranoia, physiological reactive/increased arousal, and avoidance of stimuli associated with trauma were all symptoms of PTSD.  

According to the March 2014 DBQ, the Veteran's in-service stressors met criterion A because the Veteran witnessed or was confronted with events that involved actual or threatened death or serious injury and his response involved intense fear, helplessness or horror.  The psychologist further explained that, in his opinion, the Veteran's symptoms met Criterion B ("reexperiencing") in at least four ways.  He had recurrent and distressing recollections of stressful events; he experienced recurrent and distressing dreams of the events; internal or external cues that symbolize or resemble aspects of these events caused him to experience intense psychological distress; and the Veteran experienced physiological reactivity with exposure to external or internal cues that symbolize or resemble an aspect of the traumatic events.  The Veteran likewise met Criterion C ("avoidance").  According to the psychologist, these symptoms included efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places or people that arouse recollections of the trauma; the inability to recall an important aspect of the trauma; markedly diminished interest or participation in significant activities; and feelings of detachment or estrangement from others.  Finally, the psychologist indicated that at least four of the Veteran's symptoms (difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response) satisfied Criterion D ("hyperarousal").  

In June 2014, the RO obtain a report from another psychologist, who concurred in the diagnosis of schizoaffective disorder, which she wrote was unlikely to be related to service.  The report recommended further psychological assessment of the Veteran and applied the DSM-5 criteria.  The June 2014 report did not specifically address whether the Veteran's symptoms met the diagnostic criteria for PTSD under DSM-IV or DSM-5.

The post-service medical records include another report, dated August 2015, entitled "Posttraumatic Stress Disorder Clinical Team Intake" which applied the DSM-5 criteria for diagnosing PTSD.  In this assessment, the psychologist described the Veteran as meeting criterion B (re-experiencing) and criterion C (avoidance).  According to the psychologist, re-experiencing symptoms consisted of intrusive thoughts and memories, recurrent nightmares, intense psychological distress at reminders, and physiological reactivity - for example, heart racing and heavy breathing.  Avoidance symptoms included staying away from crowds and crowded shopping malls.  The Veteran also did not drive and tried to keep busy to avoid thinking about trauma.

The report reflects that the Veteran's symptoms satisfied DSM-5 criterion E ("hyperarousal").  Comparing the August 2015 evaluation to earlier reports, it appears that one change implemented by DSM-5 is that it replaced "hyperarousal" with "negative cognition/mood" under Criterion D and re-designated "hyperarousal" as Criterion E.  According to the August 2015 report, the Veteran's symptoms satisfied both Criteria D and E.  Specifically, the Veteran's blurry recollection of some aspects of the trauma and his feelings of guilt and stress satisfied Criterion D ("negative cognition/mood") while his irritability, aggression, hypervigilance, and difficulty concentrating satisfied new Criterion E ("hyperarousal").  According to the August 2015 report, the Veteran had four separate diagnoses under DSM-5: (1) PTSD; (2) major depression; (3) history of schizoaffective disorder; and (4) anxiety unspecified.

The most recent VA mental disorders examination took place in April 2016.  Based on the opinion of the April 2016 examining psychologist, the RO granted service connection for persistent depressive disorder (dysthymia) with anxious distress.  According to the examiner, this was the only mental disorder present at the time of the examination.  The examiner addressed prior PTSD diagnoses in section II ("Clinical Findings") part 2 ("History") of her report.  According to the April 2016 examiner, the Veteran's experiences in Iraq met DSM-5 Criterion A requirements for PTSD traumatic stressors.  "However," the examiner continued, "the Veteran's records indicate that he has made conflicting statements in various mental health examinations over the years regarding his psychiatric symptoms (ex. he denied any history of psychosis or 'suicidal acts and self-harm' in a Psych Intake conducted [in April 2013], but he reported having had auditory and visual hallucinations and depression since 2004 - stated his depression began 'Right before my first suicide attempt' in his initial PTSD exam,) and the mental health symptoms reported by the Veteran in his initial PTSD exam [in November 2013] and in this exam are not consistent with a DSM-5 PTSD diagnosis (denied any re-experiencing, avoidance, or hyperarousal symptoms that are directly related to the traumatic stressor events)."

The April 2016 opinion did not address the April 2014 DBQ from the Veteran's treating psychologist, indicating that the Veteran's symptoms met the DSM-IV criteria for a PTSD diagnosis.  The examiner also failed to address the August 2015 report which concluded that the Veteran met the PTSD diagnostic criteria under DSM-5.

Having considered the record, including the credible hearing testimony of the Veteran and his wife, the Board finds that the evidence is at least evenly balanced as to whether his current symptoms of mental illness are properly diagnosed as PTSD.  There is some evidence against this claim.  But the November 2013 and April 2016 opinions are based in part on the examiners' assessment of the significance of potentially conflicting statements by the Veteran concerning his symptoms.  It is clear from the treatment notes and other medical evidence, however, that the Veteran's symptoms include difficulty remembering aspects of the traumatic events in service.  In his hearing testimony and written statements, the Veteran said that he first attempted to overcome his symptoms of mental illness through excessive consumption of alcohol and, indeed, his service treatment records reflect treatment for alcohol dependence.  It is a reasonable possibility that the apparently inconsistent statements relied on by the November 2013 and April 2016 examiners are the result of the Veteran's initial attribution of aspects of his mental illness to alcohol dependence and his statements about re-experiencing and avoidance to failures of memory and difficulty understanding specialized technical terms.  

It is also significant that the April 2014 DBQ applied the correct diagnostic criteria (DSM-IV) and was prepared by the mental health professional with the most extensive individual experience treating this particular Veteran.  The April 2014 DBQ gives specific examples of symptoms meeting each of the relevant diagnostic criteria and explained why each symptom identified supported a PTSD diagnosis.

As a practical matter, because he already receives compensation for another service-connected mental illness, the results of the Board's decision on this claim may be of limited significance.  Nevertheless, the evidence is at least evenly balanced on the issue of whether the Veteran has a current diagnosis of PTSD due to traumatic events during active duty service.  By law, the doubt resulting from this relative equipoise in the evidence is resolved in The Veteran's favor.  See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits.").

Sleep Apnea

The Veteran was discharged from active duty in May 2010.  In March 2013, he participated in a sleep study.  A report describing the study's results is in the record and the results were "consistent with very severe obstructive sleep apnea-hypopnea syndrome."

The Veteran and his wife believe that the sleep apnea diagnosed in March 2013 actually began during active duty service.  To support this claim, the Veteran submitted written statements form two other veterans, who identified themselves as marines who served with the Veteran.  One of the marines wrote that he shared a room with the Veteran for about six months.  According to the statement, "[the Veteran] always had trouble sleeping.  There were times when he snored so loud that it would wake me up at night.  Then there were times when I would hear nothing.  His snoring problem had an intermittent pattern.  I didn't work directly with [the Veteran], but I would visit his office often to pick up the mail.  Whether at the office or at the base store [the Veteran] always looked tired, and as if he didn't sleep the night before."

The author of the second statement identified himself as the Veteran's sergeant, who worked with him from 2006 to 2009.  The sergeant wrote that he remembers the Veteran telling him about trouble with sleep and difficulty waking up in the mornings.  At the Veteran's suggestion, the sergeant went to wake the Veteran up one morning and heard extremely loud snoring from outside the door together with the noise of the Veteran's alarm clock ringing.  According to the sergeant, "I had to knock on the door very hard just to get him to wake up."  

The Veteran's wife also submitted a written statement.  According to her, she not only slept with earplugs because of the Veteran loud snoring, but she also noticed him stop breathing in his sleep.  She wrote that it took years of her "begging" him to schedule a medical appointment to evaluate these symptoms before the Veteran participated in the March 2013 sleep study.  Her hearing testimony was consistent with this statement.  She testified that she remembers that "[the Veteran] was choking in his sleep, and he stopped breathing" and that she suggested that he seek help for this problem long before the sleep study established a sleep apnea diagnosis: "but he just ignored me all through the first three years of our marriage."

To help decide the Veteran's claim, the RO obtained a medical opinion from a physician in November 2013.  The examiner's report indicates that she reviewed the results of the March 2013 sleep study and diagnosed obstructive sleep apnea.  She identified 2013 as the initial date of diagnosis.  The medical history of the report acknowledges that the Veteran's roommates complained of loud snoring and that the Veteran says he experienced fatigue, hypersomnolence and tiredness in service. According to the examiner, "however, he did not seek any medical attention or have any treatment in the service.  His sleep study performed in March 2013 revealed severe obstructive sleep apnea, requiring treatment with CPAP."  

In the opinion of the examiner, it was less likely than not that sleep apnea began in service or was the result of any in-service disease, injury or event.  The written rationale for this opinion is mostly devoted to addressing the Veteran's claim that his PTSD caused him to develop sleep apnea.  According to the examiner, obstructive sleep apnea is a disorder which involves the obstruction of the airway during sleep and can be caused by any structural abnormality of the face, skull, or airway.  The examiner emphasized the absence of any report of anatomical abnormality in the service treatment records - such as sinus or nasal congestion, deviated septum, or tonsillar enlargement - and the inability of a mental condition to cause a physical obstruction of the airway.

The Veteran provided two contrary letters from medical professionals to support his claim.  The first letter, dated May 2013, is from a physician's assistant in private practice.   The letter indicates that the Veteran participated in a sleep study in March 2013 which revealed severe obstructive sleep apnea.  The letter noted that fellow marines reported loud snoring and that the Veteran himself told the author that he remembers falling asleep during training sessions and that his wife noticed loud snoring and apneic episodes as well as episodes of choking.   The physician's assistant concluded: "I think it is most likely that he was already suffering from sleep apnea during that time that he was on active duty in the military . . ."

The Veteran submitted a longer report from a specialist in sleep medicine.  This report, dated November 2016, indicates that the expert formed her opinion after a consultation with the Veteran and a review of the service medical records and the March 2013 sleep study.  The expert concurred in the diagnosis of severe obstructive sleep apnea and explained that sleep apnea develops gradually over time "usually beginning with mild and intermittent snoring in a young man and gradually worsening, with more disruptive and persistent snoring, more frequent breathing pauses, more oxygen desaturation episodes, cardiac involvement, and more sleep impairment."  According to the expert, "Given the specific characteristics of this individual's obstructive sleep apnea as documented in his sleep study and given his medical and sleep history, it is my expert opinion that it is more likely than not that this individual developed sleep apnea 6-10 years prior to his sleep study.  His sleep apnea had its onset while he was on active duty."  To support this opinion, the author relied on the pre-diagnosis reports of disruptive snoring, poor sleep quality and daytime sleepiness in service.

Having considered the evidence, the Board finds that it is at least as likely as not that the currently diagnosed obstructive sleep apnea had its initial onset during active duty service.  The November 2013 examiner's opinion is opposed to this conclusion, but the Board finds that the contrary opinions of the sleep expert and the physician's assistant deserve at least similar probative weight.  The November 2013 report is undermined to some extent by its singular focus on the Veteran's theory of secondary service connection based on PTSD.  The sleep expert's statement that sleep apnea develops gradually over time, together with the March 2013 sleep study's description of the Veteran's sleep apnea as "very severe", supports the conclusion that he began to develop sleep apnea long before he sought treatment and obtained a clinical diagnosis.  In this context, the credible statements of the Veteran's wife and of his fellow marines tend to support the favorable nexus opinions of the sleep expert and of the physician's assistant.

For these reasons, the Board must resolve reasonable doubt in the Veteran's favor and will grant service connection for sleep apnea.  


ORDER

Entitlement to service connection for PTSD is granted.

Entitlement to service connection for sleep apnea is granted.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs