Citation Nr: 21000522 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-37 195 DATE: January 5, 2021 REMANDED Entitlement to service connection for a right knee disability, to include as secondary to service-connected right ankle disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for acid reflux with a hiatal hernia, to include as secondary to an acquired psychiatric disorder and/or medication taken for a service-connected disability, is remanded. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder and/or medication taken for a service-connected disability, is remanded. Entitlement to service connection for sleep apnea/sleep disorder, to include as secondary to an acquired psychiatric disorder and/or service-connected deviated septum, is remanded. REASONS FOR REMAND The Veteran had active service from March 1976 to March 1980. The Veteran died in June 2017. The Appellant is the Veteran’s surviving spouse and has been properly substituted for the Veteran. See March 2019 correspondence. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from September 2013, March 2016 and December 2016 rating decisions. In April 2019 and October 2020, the Board remanded these claims for further development. Unfortunately, another remand is required. 1. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected right ankle disability. The Veteran asserted his right knee disability had an onset during service or in the alternative, was secondary to his service-connected right ankle disability. See, e.g., June 2010 statements, August 2015 VA Form 21-526b. The Veteran stated in June 2010 that he weakened his right knee in 1979 while in VMO-II. He also reported lifting heavy bombs and weapons during service. The Veteran was afforded a VA examination in November 2015, at which time he was diagnosed with right knee osteoarthritis, right knee chondromalacia, and bone infarcts of the distal femur and proximal tibia. As noted in the October 2020 Board remand, a VA medical opinion pertaining to secondary service connection was obtained in May 2016 but was determined by the Board to be inadequate. The issue was remanded in October 2020 to obtain an addendum medical opinion pertaining to both direct and secondary service connection. A medical opinion was obtained in November 2020; however, the opinion only discusses the Veteran’s diagnosed bone infarcts of the distal femur and proximal tibia. No opinion, direct or secondary, was provided pertaining to the Veteran’s diagnosed right knee osteoarthritis and chondromalacia. On remand, an addendum opinion must be obtained. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for acid reflux with a hiatal hernia, to include as secondary to an acquired psychiatric disorder and/or medication taken for a service-connected disability. 4. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder and/or medication taken for a service-connected disability. The claim for entitlement to service connection for an acquired psychiatric disorder was remanded by the Board in October 2020. The issues of entitlement to service connection for acid reflux with a hiatal hernia and hypertension were remanded as being intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder. In the October 2020 remand, the RO was directed to attempt to verify the Veteran’s multiple stressors. All efforts were to be documented and associated with the claims file. The RO was also to obtain an addendum medical opinion for the Veteran’s acquired psychiatric disorder. The claims file does not contain any information regarding the efforts taken to attempt to verify the Veteran’s stressors. There is a single Report of General Information, dated November 2020, in which 4 stressors were listed and described. It was noted that none of the stressors could be verified with currently available records. Of particular importance, the Board notes that the first two stressors listed on the Report of General Information are described as, “USS Forestall June 1978 – Veteran reported crash of aircraft and death of pilot, however, his personnel records/STRs cannot place him on board the USS Forestall at any period of time” and “USS Nimitz 1976-80. Landing craft accident near Rota Spain. Personnel records/STRs cannot place him on board the USS Nimitz at any time period.” The Veteran described his stressors on multiple occasions; for example, in a June 2012 statement, the Veteran reported that a Lt. Cmdr. A. was the pilot who crashed into the sea from the USS Forrestal, however, the Veteran indicated that he witnessed it as a crewmember aboard a 46 that was part of the search and rescue (SAR) sent from the 6th fleet in support of Operation Solid Shield. The Veteran did not indicate that he was onboard the USS Forrestal, as the RO attempted to verify, only that Lt. Cmdr. A. was from the USS Forrestal and crashed into the sea. As described in a May 2015 VA examination, the Veteran indicated he was stationed on the USS Inchon and sent on a helicopter to aid the USS Forrestal after an accident, not that he was serving aboard the USS Forrestal. Additionally, the Veteran did not indicate that he was aboard the USS Nimitz when he witnessed the capsizing of a landing craft, but rather that the landing craft was from the USS Nimitz when he witnessed the capsizing while with his company and fellow soldiers in Rota, Spain. As noted, the Veteran indicated that he was part of the 6th fleet in support of Operation Solid Shield. The Board notes that a review of personnel records in the claims file reveals there is a lack of information as to where the Veteran was stationed or what ship he was on during the reported time period(s). On remand, the RO must document attempts to verify the Veteran’s stressors, which includes whether the Veteran was located/stationed on a ship nearby, i.e., the USS Inchon or part of the 6th fleet in support of Operation Solid Shield, to the USS Forrestal and USS Nimitz at the time he reported witnessing accidents that occurred from those ships. Additionally, the Board directed the RO to obtain an addendum opinion for the Veteran’s acquired psychiatric disorder; however, the RO failed to obtain a medical opinion. Of note, the Veteran had diagnoses of various psychiatric disorders, post service. A review of the record indicates the Veteran entered into service with no noted psychiatric disorders and on his January 1980 Report of Medical History for separation from service, he reported experiencing depression or excessive worry. The Veteran also reported experiencing verbal and physical abuse during service. See March 2010 statement. A February 2012 VA treatment note indicates the Veteran had anxiety symptoms in the context of developmental trauma, which were reinforced via harsh experiences during the military. To date, no VA medical opinion obtained has discussed this evidence. On remand, an addendum opinion must be obtained, regardless of whether the above cited stressors are verified. 5. Entitlement to service connection for sleep apnea/sleep disorder, to include as secondary to an acquired psychiatric disorder and/or service-connected deviated septum. The Veteran asserted he experienced a sleep disorder/sleep apnea during service, or in the alternative, that his acquired psychiatric disorder and/or service-connected deviated septum caused or aggravated his sleep apnea/sleep disorder. This issue was remanded in October 2020 to obtain a medical opinion. As noted in the remand, medical evidence indicates the Veteran was diagnosed with insomnia and an unspecified sleep disturbance. A medical opinion was obtained in November 2020, opining it was less likely than not that the Veteran’s sleep disturbances, including a single report of observed apnea, had their origin in service, including nasal trauma. The examiner explained that the majority of sleeping problems found on review of medical records arise from parasomnias unrelated to breathing. The examiner noted that sleeping complaints in June 2010 responded well to anti-depressants. The examiner then focused his explanation on sleep apnea and the known causes of sleep apnea. The Board finds this opinion is inadequate. As noted in the October 2020 remand, VA treatment records indicate the Veteran had a diagnosis of insomnia and unspecified sleep disturbance. The Veteran reported on several occasions that his sleeping problems began during service, however, the examiner failed to consider and discuss these lay statements. Additionally, the examiner indicated that the majority of the Veteran’s sleeping problems arise from parasomnias unrelated to breathing but did not opine or discuss whether the parasomnias had an onset during service or were otherwise related to service. Finally, the examiner did not fully offer an opinion with rationale as to whether the Veteran’s service-connected deviated septum aggravated or caused his diagnosed insomnia and/or unspecified sleep disturbance. On remand, a medical opinion must be obtained that considers the Veteran’s lay statements and discusses whether his deviated septum caused or aggravated his sleep disorder. The matters are REMANDED for the following action: 1. Obtain an addendum opinion for the Veteran’s right knee disorders, diagnosed as osteoarthritis and chondromalacia. The claims folder must be provided to the examiner for review. After a review of the claims file, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability): a) that the Veteran’s right knee osteoarthritis and/or chondromalacia had an onset during service, or was causally or etiologically due to service, to include the documented in-service injury in November 1977 that resulted in a fractured right ankle and/or the Veteran’s reports of lifting heavy weapons and bombs; or, b) that the Veteran’s right knee osteoarthritis and/or chondromalacia was proximately due to or aggravated (beyond a natural progression) by his service-connected residuals of a right ankle fracture. c) The examiner should consider and discuss the following: the August 2012 VA Medical Center letter indicating the Veteran had a history of right knee pain; the June 2010 Veteran’s report of lifting heavy weapons and bombs during service; and the Veteran’s June 2010 report of weakening his knee in 1979 at the time he injured his right ankle. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Make all efforts to verify the Veteran’s asserted stressors using the appropriate actions; all efforts should be documented and associated with the Veteran’s claims file. In particular, the RO should attempt to verify the Veteran’s report of: a) Witnessing the death of Lt. Cmdr. A. who crashed into the sea from the USS Forrestal; the Veteran asserts he was a crew member aboard a 46 during the time in approximately June 1978 (see August 2012 statement); b) While in Rota, Spain, his company and fellow soldiers witnessed the capsizing of a landing craft from the USS Nimitz, while several Marines and Navy soldiers perished (see August 2012 statement); c) In the Fall of 1977, he witnessed the suicide of a fellow soldier while on guard duty at MCAS New River, NC. Other witnesses included Cpl. S.P. and Ssgt. J. (see October 2012 statement); d) Personal assaults during service in platoon 2027 in MCRD San Diego, and witnessing assaults of fellow service members W. M. and D. P. from Texas, in approximately March 1976 to June 1976 (see October 2012 statement); *The RO should verify the ship(s) the Veteran was stationed on during these time periods and verification of the above cited stressors should include whether, as part of the 6th fleet in support of Operation Solid Shield, the Veteran was stationed on a ship located nearby to the USS Forrestal and USS Nimitz at the time he reported witnessing accidents that occurred from those ships. 3. Obtain an addendum opinion for the Veteran’s claimed acquired psychiatric disorder. The examiner should review the claims file and based on the evidence of record, please clarify the Veteran’s diagnosis. a) The examiner should opine whether it is clear and unmistakable that the Veteran entered service with an acquired psychiatric disorder. b) If the Veteran’s acquired psychiatric disorder clearly and unmistakably pre-existed service, the examiner should determine whether it is clear and unmistakable that his acquired psychiatric disorder was not aggravated beyond the natural progress of the disorder by his service, to include any of the reported in-service stressors, including verbal and physical assaults. c) If the Veteran’s acquired psychiatric disorder did not clearly and unmistakably pre-exist service, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any post-service acquired psychiatric disorder was related to his service, to include any of the reported in-service stressors, including verbal and physical assaults. *The examiner should consider and discuss: the January 1980 Report of Medical History for separation from service wherein the Veteran reported experiencing depression or excessive worry; the Veteran’s report of experiencing verbal and physical abuse during service; a February 2012 VA treatment note indicating the Veteran had anxiety symptoms in the context of developmental trauma, which were reinforced via harsh experiences during the military. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Obtain an addendum VA opinion for the claimed sleep apnea/sleep disorder. The claims folder must be provided to the examiner for review. After a review of the claims file, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability): a) that the Veteran’s diagnosed insomnia and unspecified sleep disturbance had an onset during service, or was causally or etiologically due to service; or, b) that the Veteran’s diagnosed insomnia and unspecified sleep disturbance was proximately due to or aggravated (beyond a natural progression) by his service-connected deviated nasal septum. *The examiner should consider and discuss the following: the VA treatment records which indicate the Veteran’s deviated septum resulted in an increased breathing effort; the November 2015 VA examination for his deviated septum, wherein it was noted that his deviated septum impacted his ability to work because it caused him to have trouble sleeping; and the Veteran’s statements that his sleeping problems began during service. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.