Citation Nr: 20042459 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 17-00 629 DATE: June 24, 2020 REMANDED The claim of entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder (MDD) and posttraumatic stress disorder (PTSD), is remanded. The claim of entitlement to service connection for a sleep disorder (claimed as sleep apnea) is remanded. The claim of entitlement to service connection for a deviated septum is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1984 to July 1998. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2013 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied service connection for PTSD, sleep apnea, and a deviated septum. In September 2014, the Veteran filed a notice of disagreement (NOD). In December 2016, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) January 2017. In July 2019, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Although the Veteran has claimed service connection for PTSD, the Board has expanded the claim to include consideration of any other psychiatric diagnoses of record (currently, PTSD and MDD), consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on these claims, prior to appellate consideration, is warranted. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A veteran’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. With regard to the claim for an acquired psychiatric disorder to include PTSD and MDD, the Veteran contends that he has PTSD as a result of an in-service event where he signed a waiver allowing the soldiers he was commanding to rent a car for a weekend, and those soldiers died in a car accident later that weekend. Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) medical evidence of a link between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). During the July 2019 Board hearing, the Veteran testified that his PTSD stems from an incident in service where he signed a waiver allowing soldiers to rent a car and that two soldiers died in a car crash involving that rental car. The Veteran further testified that he felt responsible for their deaths. In July 2014, the Veteran submitted a copy of a funeral service pamphlet, rom a, which notes that two Army soldiers had died in a car crash in January 1991 in Schweinfurt, Germany. Further, in a November 2013 buddy statement, a former service member stated that he was stationed with the Veteran in Schweinfurt, Germany in the late 1980s and early 1990s, and that it was not uncommon to see the Veteran breakdown and start crying during service. The Board finds that the Veteran’s reports, along with the supporting statements from his fellow service member, and a copy of a pamphlet from a funeral service for a car crash in 1991 constitute credible supporting evidence that his reported stressor involving a car crash that killed two soldiers in service likely occurred. A July 2015 VA treatment record reflects diagnostic impression of PTSD and MDD. The VA clinician documented the Veteran’s report that he experienced pre-military sexual trauma, as well as the in-service stressor described above. The VA clinician later noted that these experiences of the Veteran met the PTSD criterion A definition of a traumatic stressor. |Given Based on evidence of current psychiatric disabilities and evidence, including credible assertions and evidence that such disabilities are the result of service, the Board finds that remand of the Veteran’s acquired psychiatric disability, to include PTSD and MDD, is warranted to afford him a VA mental disorder examination. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79. Regarding his sleep apnea, the Board notes that his service treatment records (STRS) are silent for any complaints of sleep problems. However, the STRs do note that the Veteran had breathing problems and chronic dyspnea during service. See April 1994 STR. Further, during the July 2019 Board hearing, the Veteran testified that his sleep problems began during service and that his roommates would complain about his snoring. The Veteran further testified that he did not have any problems with sleeping prior to service. In a November 2013 buddy statement from a service member that served with the Veteran, he stated that many people often spoke about the Veteran’s sleeping problems and that it was well known that the Veteran was a heavy snorer and restless sleeper. The former service member also stated that he had to go sleep outside of an armored vehicle to get away from the Veteran’s loud snoring. An October 2012 sleep study did not result in a diagnosis of sleep apnea; however, the physician noted that the veteran’s sleep problems included moderate to severe disordered breathing, snoring, marked obesity, and delayed sleep phase syndrome. The October 2012 sleep study found that the Veteran had a current sleeping disability and a buddy statement revealed that the Veteran had sleeping difficulties in service which indicates that a sleeping disability or symptoms of a sleeping disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. The Veteran was not afforded a VA examination for a sleep disability. The Board finds that a remand is warranted to provide the Veteran with a VA examination to address whether the Veteran’s current sleeping disability is related to his reported sleeping difficulties and snoring during service. McLendon, 20 Vet. App. 79. With regard to the claim for service connection for deviated septum, during the July 2019 Board hearing, the Veteran testified that he had a blockage in his nostrils during service and that a septoplasty was performed during service to fix a deviated septum. The Veteran further testified that the surgery was not done properly, and that it did not correct the deviated nasal septum, which grew back incorrectly after the surgery. A June 1994 STR documents that the Veteran had septoplasty and that a discharge diagnosis was nasal obstruction. Post-service, an October 2012 VA treatment record reflects a diagnosis of a deviated septum. Based on evidence of current deviated septum and evidence that the Veteran had nasal blockage and a septoplasty in service, the Board finds that remand of the Veteran’s claim for service connection for a deviated septum is warranted to afford him a VA examination and to address whether the Veteran’s current deviated septum is related to his nasal blockage and septoplasty in service. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79. The Board further notes that the Veteran’s nose was evaluated as clinically normal and no sinus problems were noted in the January 1984 entrance examination. In this regard, the Board notes that a Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on the entrance examination report. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness is rebutted where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Id.; VAOPGCPREC 3-03 (July 16, 2003), 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). In determining whether there is clear and unmistakable evidence that an injury or disease existed prior to service, the Board must consider the history recorded at the time or examination together with all other material evidence, including medical judgments, accepted medical principles, and the Veteran’s history of clinical factors. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). In this case, no complaints or abnormal findings were noted with respect to the Veteran’s nose or sinuses on any entrance examination, and thus the Veteran is presumed to be in sound condition with respect to the nose ans sinuses upon entry into service. See 38 U.S.C. § 1111; Wagner, supra. Therefore, the Board is only seeking an opinion of whether it is at least likely as not that the Veteran’s current deviated septum was incurred in, or is otherwise medically related to, o service, to include nasal obstruction and septoplasty noted therein.. Also while these matters are on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to any claim(s) on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, appropriate authorization to enable VA to obtain, any additional evidence pertinent to any service connection claim(s) on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA mental health examination, by a psychiatrist or psychologist. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should specifically consider all evidence of record related to the Veteran’s alleged in-service stressor and then render a determination as to whether the Veteran’s PTSD stems from pre-military sexual trauma or from the in-service stressor. If the examiner determines that the Veteran does not meet and has not met the diagnostic criteria for PTSD, he or she should reconcile such conclusion with the Veteran’s history of treatment for PTSD and the multiple PTSD diagnoses of record. If a diagnosis of PTSD is deemed appropriate, the examiner should clearly and fully explain how the diagnostic criteria are met, to include comment upon the link, if any, between the in-service stressor and the Veteran’s symptoms. Regardless of whether PTSD is diagnosed, the examiner should clearly identify all other current acquired psychiatric disorder(s), to include major depressive disorder, currently diagnosed or validly diagnosed at any point pertinent to the current claim (even if now asymptomatic or resolved). Then, for each such diagnosed disorder, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability (a) had its onset during the Veteran’s active service; (b) if a psychosis, was present to a compensable degree within the first post-service year; or (c) is otherwise medically-related to the Veteran’s period of active service, to include his claimed in-service stressor. In rendering each requested opinion, the examiner must consider and discuss all relevant medical and other objective evidence, as well as all lay assertions, to include the Veteran’s anda former service member’s assertions as to in-service events, and the Veteran’s assertions as to the nature, onset, and continuity of symptoms. The examiner is advised that the Veteran is competent to report his symptoms and history, and his former service member is competent to report his observations of the Veteran; thus, such lay reports should be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination for his claimed sleep disorder by an appropriate physician. The entire, electronic claims file, to include a complete copy of the REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify any sleep disorders, to include moderate to severe sleep disordered breathing and delayed sleep phase syndrome (as noted in medical records) currently present, or present at any point pertinent to the claim on appeal (even if now asymptomatic or resolved). Then, for each such identified disability, the physician should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service, or is/was otherwise medically related to service, to include alleged interrupted sleep and snoring during and since service. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence, to particularly include all in- and post-service medical records, as well as all lay assertions, to include the Veteran’s assertions to nature, onset and continuity of symptoms. The physician is advised that the Veteran is competent to report his symptoms and history, and that the lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Complete, clearly stated rationale for the conclusions reached, must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate physician, for his claimed deviated septum. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the deviated septum had its onset in service, or is otherwise medically related to service, to include documented evidence of obstruction in his nose and septoplasty in the service treatment records. The physician must also consider and discuss lay assertions regarding symptoms of deviated septum during and since service. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested actions, and any additional action deemed warranted, adjudicate claims on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, Associate Counsel 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.