Citation Nr: 21001530 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 19-28 295 DATE: January 8, 2021 REMANDED Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep disturbance, including sleep apnea and hypersomnia, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1956 to December 1957. In March 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection for PTSD The Veteran’s claim was previously remanded for additional stressor development in August 2020. Specifically, the Agency of Original Jurisdiction (AOJ) was directed to expand the range of dates it searched for deck logs for the USS Thomaston to include August 1956 through 1957. The AOJ requested deck logs for the latter part of 1956 but did not request deck logs from 1957. See August 2020 Correspondence, p. 1. The Board also notes the October 2020 response from the National History and Heritage Command which stated that any deck logs older than 30 years would have been transferred to the National Archives and Records Administration (NARA) for permanent retention. See October 2020 Email Correspondence, p. 1. There is nothing in the claims file to suggest that the AOJ followed up with NARA for the relevant deck logs. Because the AOJ did not substantially comply with the Board’s directive, the claim must be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a Board remand confers on a claimant the right to compliance with the remand orders). Since the Board’s August 2020 remand, the Veteran has submitted additional unofficial records which may aid the AOJ’s efforts to verify his claimed in-service stressor. See October 2020 Correspondence, p. 26; October 2020 Correspondence, p. 5. These records should be reviewed by the AOJ on remand. In September 2020, the AOJ obtained an examination and opinion for the Veteran’s claimed PTSD. The examiner opined that the Veteran’s symptoms do not meet the DSM-5 criteria for PTSD but met the criteria for unspecified trauma- and stressor-related disorder. See September 2020 VA Examination, pp. 3-4. However, the examiner did not provide an opinion on whether the Veteran’s diagnosed acquired psychiatric disability is etiologically related to his active duty service. On remand, the AOJ should obtain a nexus opinion that considers the Veteran’s diagnosed condition. Service Connection for Sleep Disturbance The Veteran has claimed that his sleep disturbance, to include sleep apnea, is secondary to his PTSD. See October 2016 Fully Developed Claim, p. 10; March 2020 Hearing Transcript, pp. 11-12; see also March 2019 Private Treatment Records, p. 2. As such, the Veteran’s service connection claim for sleep apnea is inextricably intertwined with the claim for service connection for PTSD. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As the PTSD claim is being remanded, the sleep apnea claim must also be remanded. The Veteran previously submitted an opinion from a non-VA clinician that it was as likely as not that his sleep apnea onset during his active duty service. See October 2016 Private Treatment Records, p. 1. However, the clinician’s opinion does not include a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that a medical opinion that contains no supporting rationale has no probative value). On remand, the AOJ should obtain a VA opinion that addresses whether the Veteran’s sleep disturbance, including his sleep apnea, is etiologically related to his active duty service and his PTSD. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Contact all appropriate repositories, including NARA, to obtain deck logs from the USS Thomaston from August 1956 through November 1957. All efforts to obtain these records should be documented. If no additional records are obtained, prepare a Memorandum of Formal Finding of Unavailability outlining the steps taken to retrieve these records and notify the Veteran. 2. Schedule the Veteran for an examination to ascertain the nature and etiology of the Veteran’s acquired psychiatric disability, including unspecified trauma- and stressor-related disorder. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s acquired psychiatric disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service. In providing this opinion, the examiner should consider the Veteran’s report of experiencing distress while participating in a mission to deliver assistance to a ship that had collided with another ship as well as his reported history of longstanding mental health symptoms. See October 2016 Statement in Support of Claim, p. 1; October 2016 Correspondence, p. 1; May 2018 Buddy Statement, p. 1; March 2020 Hearing Transcript, pp. 3-11. The examiner is advised that the Veteran is competent to report his history and symptoms, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 3. Schedule the Veteran for an examination to ascertain the nature and etiology of the Veteran’s claimed sleep disturbance, including sleep apnea and hypersomnia. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale that address the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea or hypersomnia was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? (b) Is it at least as likely as not that the Veteran’s sleep apnea or hypersomnia is caused by, aggravated by, or is otherwise etiologically related to an acquired psychiatric disability? In providing this opinion, the examiner must consider the August 2018 sleep study report which lists certain psychiatric disabilities as causes of somnolence. See March 2019 Private Treatment Records, p. 2. The examiner is advised that the Veteran is competent to report his history and symptoms, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, 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.