Citation Nr: 20037814 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 16-08 652 DATE: June 2, 2020 ORDER Entitlement to service connection for acquired psychiatric disorders including posttraumatic stress disorder (PTSD), dysthymia, and anxiety is granted. Entitlement to service connection for obstructive sleep apnea secondary to service-connected PTSD is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise that the Veteran’s PTSD, dysthymia, and anxiety are a result of the Veteran’s service. 2. The competent medical evidence of record supports a finding that the Veteran’s obstructive sleep apnea has been aggravated by service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD, dysthymia, and anxiety are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for obstructive sleep apnea as secondary to PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to May 1965. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board previously remanded this matter for further development in September 2018. After substantial compliance with the Board remand directives, the case had been returned to the Board for appellate review. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the Veteran’s claim for service connection for depression pursuant to Clemons and recharacterized it as entitlement to service connection for an acquired psychiatric disability. Service Connection Generally, establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247 (1999). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that his acquired psychiatric disability is etiologically related to his service or in the alternative secondary to his service-connected bilateral hearing loss and/or tinnitus. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (conforming to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Cohen v. Brown, 10 Vet. App. 128 (1997). Only in limited circumstances is after-the-fact medical nexus evidence permitted to link a PTSD diagnosis to the Veteran's service, such as when the claim is predicated on military sexual trauma (MST) as the stressor. 38 C.F.R. § 3.304 (f)(5). There also are lesser proof requirements for establishing the occurrence of a valid stressor when the alleged event is claimed to have happened while engaged in combat against an enemy force or due to the Veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304 (f)(2) and (3). The evidence does not suggest that the Veteran engaged in combat with the enemy, and the Veteran is not asserting that his claimed disability resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (b) are not applicable. The Veteran asserts that his claimed psychiatric disorder is due to his service in South Korea in 1964 and 1965. He asserts that a TNT bunker exploded right next to him causing loss of consciousness as well as hearing loss and tinnitus. He asserts that he began having nervous problems and depression after this incident. He states further that while stationed in Korea he was in fear of being attacked or killed by hostile forces. The Veteran’s service treatment records do not indicate any complaints, treatment, or diagnosis of a psychiatric disorder. The Veteran’s service personnel records indicate that the Veteran served in Korea. In August 2015, the Veteran underwent a VA psychiatric examination. The examiner found that the Veteran had a diagnosis of chronic PTSD and dysthymia. The examiner stated that it seemed that the Veteran’s PTSD symptoms are related to stressors he experienced in the service, including the explosion which caused his tinnitus and hearing loss as well as being in Korea. The examiner noted that the Veteran had a fear of being attacked or killed while in Korea and these stressors are consistent with the places, types and circumstances of his service. The examiner noted that the stressors are adequate to support the diagnosis of PTSD and they were due to his fear of hostile military activity causing fear, horror and helplessness in him. The examiner further note that the Veteran’s depressive disorder is secondary to his PTSD. In December 2019, the Veteran underwent another VA psychiatric examination. The examiner opined that the Veteran’s claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that after a review of the record, the August 2015 VA examination presented coherent and reasonable diagnoses accounting for the Veteran’s diagnosed PTSD and subsequent medical problems presenting as PTSD and dysthymia. The examiner noted that these two diagnoses occur together and are clinically associated and exacerbated one another in a dynamic fashion inhibiting differentiation of which portion of each symptom is attributable to each diagnosis or etiology. In June 2012, the Veteran’s private psychologist, Dr. S., submitted an opinion letter. Dr. S. stated that the Veteran met the criteria for major depression. Dr. S. stated that after reviewing the Veteran’s history the Veterans anxiety symptoms and excessive psychophysiological arousal seemed to have been due in part to his military involvement in South Korea. Dr. S. noted that the Veteran was not presenting with anxiety at that time. Dr. S. stated that over the course of treatment with the Veteran, she was convinced that his distress was due in a large part to military exposure in Korea in 1964 and 1965. In March 2015, Dr. S. submitted a medical statement which noted that the Veteran met the diagnostic criteria for major depression, single episode. Dr. S. explained that “single episode” referred to the fact that he had an episode of depression that was trigger by a specific event. Such an event may last weeks or may be lifelong. Dr. S. noted that the Veteran had been participating in cognitive-behavioral therapy targeting depression and anxiety intermittently since October 2003. In June 2015, Dr. S. submitted another medical opinion. Dr. S. reiterated her opinion that the Veteran’s depression and anxiety are directly related to his military service in South Korea in 1964-1965. Dr. S. then added further added that at least a portion of his depression is due to the Veteran’s chronic tinnitus. Dr. S. reasoned that the relationship between tinnitus and depression is empirically documented and, Dr. S. noted, the Veteran falls into this example. Dr. S. further reasoned that the Veteran had reported emotional distress, difficulty concentrating, and difficulty in recall words all of which are directly related to his depression and tinnitus. Dr. S. concluded that tinnitus and depression can form a vicious cycle in which the tinnitus worsens the depression and in turn the depression can increase focus on the exacerbate the tinnitus. In March 2015, the Veteran’s brother stated that while he and the Veteran served together in Kentucky the Veteran suffered from depression. In December 2015, the Veteran submitted a stressor statement. The Veteran stated that during a basic training exercise he was rendered unconscious during a live fire training event that included a nearby explosion of a TNT bunker. The Board finds that service connection for anxiety, PTSD and dysthymia is warranted. The Board notes that the Veteran’s stressor involving a live fire event was not confirmed. Although VA did not provide a formal finding, the Board notes that in September 2018 the AOJ sent a letter to the Veteran stating that he did not provide information that met the minimum level of detail needed for VA to seek assistance from the United States Army and Joint Serves Records Research Center (JSRRC). The letter instructed the Veteran to submit additional evidence to allow VA to seek the assistance to JSRRC. However, the Board finds that resolving reasonable doubt in the Veteran’s favor, and noting the consensus of both the August 2015 and December 2019 VA examiners’ opinions that service in Korea was a stressor that caused the Veteran’s PTSD, the Board finds that the Veteran’s PTSD is etiologically related to his service and service connection must be granted. The Board further finds that the Veteran’s diagnosed dysthymia and anxiety is also granted. In finding service connections for these psychiatric disorders the Board relied on the positive opinion by the Veteran’s private psychologist Dr. S., and the August 2015 and December 2019 VA opinions. Notably, the VA examiners found the Veteran’s depressive symptoms were secondary to the Veteran’s PTSD, and Dr. S. found the Veteran’s anxiety and depression were directly related to his service in Korea. Therefore, providing the benefit of the doubt to the Veteran, the Board finds that service connection for his diagnosed dysthymia and anxiety is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, as the Board granted service connection for the Veteran’s acquired psychiatric disabilities based on a direct basis, the Veteran’s claim that his acquired psychiatric disabilities is secondary to his service-connected hearing loss and tinnitus is moot. 2. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his sleep apnea began in service. In April 2011, the Veteran VA treatment records note a history of hypersomnia and obstructive sleep apnea. The Veteran underwent a sleep study in June 2013. The sleep study documented a diagnosis obstructive sleep apnea. In September 2016, the Veteran’s private doctor, Dr. B., submitted medical opinion. Dr. B. stated that the Veteran had a diagnosis of obstructive sleep apnea and periodic limb movement disorder. Dr. B. opined that it is far more likely than not that these diagnoses were made worse through being linked to his PTSD. The examiner reasoned that a study published in May 2015 in the Journal of Clinical Sleep Medicine, found every clinically significant increase in PTSD symptoms severity was associated with a 40 percent increase in being at high risk for sleep apnea. Dr. B. stated that the literature supports that among older, treatment-seeking samples of veterans with PTSD, rates of diagnosed sleep apnea are higher than among the general population. Dr. B. further noted that lack of snoring is inconclusive for the establishment of sleep apnea as 25 percent or more of obstructive sleep apnea cases do not snore. Dr. B. submitted the study in conjunction with his opinion. In December 2019, the Veteran underwent a VA examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that a review of the records demonstrates that the Veteran claimed that he had sleep disturbance signs and symptoms that was eventually confirmed to be sleep apnea by a polysomnography. The examiner noted that the Veteran served on active duty from 1962 to 1965, which included no records regarding sleep symptoms during this period. The examiner explained that snoring and wake-time sleepiness are common presenting complaints of obstructive sleep apnea. In a systemic review of the accuracy of the clinical examination in the diagnosis of sleep apnea, the most useful individual finding for identifying patients with sleep apnea was nocturnal choking or gasping. Additional symptoms and signs may include restless sleep, periods of silence terminated by loud snoring, fatigue, poor concentration, nocturnal angina, and nocturia. The December 2019 examiner further opined that the claimed condition is less likely than not proximity due to, the result of, or aggravated by the Veteran’s service-connected condition. The examiner reasoned that tinnitus is a perception of sound in the proximity to the head in the absence of an external source, which can be triggered anywhere along the auditory pathway. The examiner explained that medical literature review did not provide a direct causative relationship between tinnitus and sleep apnea. In March 2015, the Veteran’s brother, who served with the Veteran in service, stated that the Veteran snored while in service. Initially, the Board notes that the December 2019 VA medical opinion is not adequate for adjudication. It appears that the examiner’s opinion was based on the lack of evidence of any sleep disturbance while in service. The examiner failed to address the Veteran’s brother’s competent and credible statement that he snored while in service, which the examiner noted was a symptom of sleep apnea. As the December 2019 VA examination is not adequate it provides less probative value. The Board further notes the December 2019 examiner did not address whether the Veteran’s sleep apnea was secondary to any acquired psychiatric disorder. The Board finds that service connection for obstructive sleep apnea secondary to his herein service-connected PTSD is warranted. The Veteran has a current diagnosis of obstructive sleep apnea. The Veteran’s private September 2016 opinion found that the Veteran’s PTSD aggravated the Veteran’s sleep apnea. There is no probative evidence in the alternative. Therefore, the Board finds that service-connection for sleep apnea secondary to PTSD is granted. As the Board finds service connection on a secondary basis is warranted, the Veteran’s direct service connection claim is moot. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.