Citation Nr: 21002701 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-55 819 DATE: January 14, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to December 1980, from November 1990 to April 1991, and from April 2003 to March 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In December 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. A September 2020 rating decision established service connection for right knee arthritis and assigned a 10 percent rating, effective August 8, 2013. Therefore, the claim for service connection for a right knee disability, previously the subject of the appeal, has been resolved in the Veteran’s favor, and there is no longer a case in controversy for Appellate consideration as to that claim.  1. Entitlement to service connection for sleep apnea is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for sleep apnea.     VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one.  Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997).  Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).    The Veteran contends that current obstructive sleep apnea began during service and continues to the present.    With regard to the claim for sleep apnea, the Board notes that during the hearing before the undersigned, the Veteran claimed that he had objective symptoms of sleep apnea, to include snoring, during service. That contention was corroborated by the Veteran’s spouse who also testified during the hearing. The Board finds that the Veteran and spouse are competent to provide evidence of objective symptoms that may be attributed to sleep apnea, such as snoring. However, as lay persons, they do not have the medical training to diagnose sleep apnea or provide an etiology opinion. At a February 2020 VA sleep apnea examination, the examiner found that it was less likely than not (less than 50 percent probability) that the Veteran’s sleep apnea was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that obstructive sleep apnea occurs when the muscles in the back of the throat relax too much to allow normal breathing. Those muscles support structures including the soft palate, the uvula, the tonsils, and the tongue. When the muscles relax, the airway narrows or closes as one breathes in and breathing may be inadequate for 10 to 20 seconds. That may lower the level of oxygen in the blood. The brain senses that impaired breathing and briefly rouses the individual from sleep so that they can reopen the airway. That awakening is usually so brief that the individual does not remember it. The individual can awaken with a transient shortness of breath that corrects itself quickly, within one or two deep breaths. That may make a snorting, choking, or gasping sound. That pattern can repeat itself five to 30 times or more each hour, all night. Those disruptions impair the ability to reach the desired deep, restful phases of sleep, and the individual will probably feel sleepy during waking hours. The examiner further explained that, according to research, snoring is common in sleep apnea patients, but is not useful for establishing the diagnosis and that snoring alone is a poor predictor for OSA, so while spouse reported that the Veteran had snoring since deployment in 1990 and 1991, that statement alone cannot be used to assert that OSA was incurred at that time. The Veteran also had records dating to 1989, while not on active duty, documenting sinusitis and allergic rhinitis with nasal symptoms which could also explain a symptom of snoring at the time. A June 2004 health assessment, not during active duty period, documented that Veteran was scheduled for a sleep study on July 2004 while not on active duty, but documentation of confirmed OSA in 2004 was not available in the evidence of record. It was not until 2013 that Veteran was diagnosed with mild OSA. Because of the lack of objective medical evidence OSA starting on an active duty period, the examiner opined that the Veteran's OSA was less likely than not incurred in or caused by the claimed in-service event or injury. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. The examiner provided a negative etiology opinion based on the fact that the Veteran did not complain of and was not diagnosed with obstructive sleep apnea during active duty service. As the February 2020 VA examiner relied on the absence of symptoms or treatment in service for the negative opinions concerning the claimed disability, the opinion is incomplete. The VA examiner does not appear to have considered the Veteran’s contentions regarding obstructive sleep apnea, as that was not addressed in the rationale. The VA examiner appears to have based the opinion solely on the objective evidence of record. Because the examiner did not discuss or consider whether there is any subjective evidence or lay evidence to support a theory that the Veteran’s obstructive sleep apnea was related to service, the Board again finds the February 2020 sleep apnea examination to incomplete. The spouse statements were noted, but not the Veteran’s contentions of symptoms of snoring and fatigue during service and since. The examiner also noted a sleep study was schedule in 2004 after separation from service, with the results not of record. The examiner did not discuss the significance of a sleep study being ordered shortly after separation from service. Accordingly, the Board finds February 2020 sleep apnea examination report to be incomplete for rating purposes.  Therefore, the Board finds that remand is necessary for adequate etiology opinion regarding the claimed disability.    2. Entitlement to service connection for hypertension is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for hypertension.    VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one.  Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997).  Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).    The Veteran contends that current hypertension began during service and continues to the present.    A review of the service medical records shows some evidence of elevated blood pressure noted on examinations during service. Specifically, a May 1981 examination shows a notation with an upwards pointing arrow followed by the letters “BP” indicating elevated blood pressure. Additionally, in a May 1986 report of medical history, the Veteran noted high blood pressure. The Board notes that the Veteran is not considered to have active duty service between December 23, 1980, and November 28, 1990. At a February 2020 VA hypertension examination, the examiner found that it was less likely than not (less than 50 percent probability) that the Veteran’s hypertension was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that essential hypertension is an idiopathic condition that has multiple risk factors including obesity, family history, race, advancing age, and others. Most of the records labeled as service medical records did not occur during Veteran's actual active duty dates, but occurred during reserve duty. A September 1983 health assessment, which was not on active duty, noted that the Veteran was diagnosed with hypertension 6 months ago. That record documented that Veteran's hypertension was diagnosed while not on active duty in approximately March 1983. Due to that objective information, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service event or illness. In a September 2020 addendum opinion, the same examiner from the February 2020 examination stated that there was no evidence of significantly worsened blood pressure during active duty periods. The highest blood pressure reading on active duty was on July 10, 2003, when blood pressure was 141/86, but the Veteran had other blood pressure readings after that including on December 23, 2005, when blood pressure was 129/85. The examiner summarized that there was no evidence of a permanent worsening of blood pressure and hypertension during active duty. The examiner noted that there was a natural increase blood pressure with age, which was the natural progression. Due to that information, the examiner opined that the Veteran's hypertension was less likely than not aggravated beyond the natural progression by an event, injury, or illness during the active duty periods. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  An opinion that relies only on the absence of symptoms or treatment in-service is not adequate.  The examiner provided a negative etiology opinion based on the fact that the Veteran did not complain of and was not diagnosed with hypertension during active service. As the February 2020 and September 2020 VA examiner relied on the absence of symptoms or treatment in service for the negative opinions concerning the claimed disability, the opinion is incomplete. Further, the VA examiner does not appear to have considered the Veteran's contentions regarding his hypertension, as that was not addressed in the rationale. The VA examiner appears to have based the opinion solely on the objective evidence of record. Because the examiner did not discuss or consider whether there is any subjective evidence or lay evidence to support a theory that the Veteran's hypertension was related to his service, the Board again finds the examination to incomplete. The examiner did not discuss the significant of a May 1981 medical record noted elevated blood pressure, within one year following separation from service. Accordingly, the Board finds February 2020 and September 2020 VA hypertension examination reports to be incomplete for rating purposes.  Therefore, the Board finds that remand is necessary for adequate etiology opinion regarding the claimed disability.    3. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder, is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a psychiatric disability. The Veteran asserts that he has a psychiatric disability that is directly related to service. The Veteran contends that he has PTSD stemming from fear related to a missile attack on February 26, 1991, while stationed in Saudi Arabia. The Veteran was most recently provided VA PTSD examination in February 2020.  The Board finds the February 2020 VA examination to be incomplete for rating purposes and further examination is required.  During the February 2020 examination, the examiner stated that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria, and diagnosed unspecified depressive disorder. The February 2020 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran’s reports suggested that he was exposed to potential traumatic stressors during service. However, it was not clear that the Veteran exhibited social or occupational deficits of the severity necessary for a formal diagnosis. For example, the Veteran confirmed he passed a psychological evaluation for employment as an Alabama State Trooper during 1986, and he worked in that capacity for 25 years until he retired during 2011. During those years he was able to tolerate formidable job stressors in his role as an armed officer without the assistance of psychiatric treatment. In fact, he reported he did not pursue psychiatric treatment until 2012. He chose to remain in the military environment to retirement, and he had been married to the same wife throughout the past 33 years. In light of above-noted considerations, the examiner found that the Veteran did not have PTSD during 2011, and the fact the Veteran was only in the combat theater for six weeks during Operation Desert Storm, the examiner could not assert the Veteran as likely as not had PTSD that was caused by or a result of service. The examiner also could not conclude the current psychiatric symptoms (anxious depression) as likely as not resulted from service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  An opinion that relies only on the absence of symptoms or treatment in-service is not adequate.  The examiner provided a negative etiology opinion based on the fact that the Veteran did not complain of and was not diagnosed with a psychiatric disability during active duty service or for many years after service. As the February 2020 VA examiner relied on the absence of symptoms or treatment in service for the negative opinions concerning the claimed disability, the opinion is incomplete. Accordingly, the Board finds February 2020 VA examination report to be incomplete for rating purposes. However, in light of the evidence and arguments of record, the Board finds that additional development is necessary prior to adjudication of the claim. An opinion, report, or other evidence from the appropriate records depositories is needed to address the issue of whether the Veteran experienced a SCUD missile attack while stationed in Saudi Arabia on February 26, 1991. To satisfy VA’s duty to assist, the RO should further develop the claim by seeking an additional response from the Joint Service Records Research Center (JSRRC). Accordingly, because the Veteran’s psychiatric disability may have been caused by service, the Board finds that a VA opinion to determine any relationship between the Veteran’s psychiatric disabilities and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Contact National Personnel Records Center (NPRC), the Joint Services Records Research Center (JSRRC) or any other appropriate repository or service department research facility and request an opinion as to whether it is at least as likely as not that the Veteran experienced a SCUD missile attack while stationed in Saudi Arabia on or about February 26, 1991, while the Veteran was on active duty. A copy of any requests sent to the JSRRC or other appropriate entity, and any reply, to include any negative reply, should be associated with the claims file. If the event is not verified, an official determination so indicating should be entered into the record. 2. Contact the Veteran and request that he provide information as to treatment for all the claimed disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA.  On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record.  If identified records are not obtained, then notify the Veteran.  38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination, with a medical doctor who has not previously examined the Veteran, to determine the nature and etiology of any sleep apnea disability. The examiner must review the claims file, including this Remand and the lay evidence of record and should note that review in the examination report. After conducting a review of the claims files, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is etiologically related to active service or any event, disease, or injury during service, including whether sleep apnea (1) began during active service or is related to any event, injury, or disease during service, (2) is related to environmental hazard exposure in the Gulf War, (3) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include right knee arthritis, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for any of the service-connected disabilities, to include right knee arthritis. The examiner should discuss the significance of the lay statements regarding the Veteran’s sleeping patterns, snoring, and fatigue during and after service. The examiner should discuss the significance of the Veteran being referred for a sleep study within a year following separation from active service. A clearly stated rationale for each opinion offered should be provided and must not be based solely on the lack of an in-service record of the claimed disability. 4. Schedule the Veteran for a VA examination, with a medical doctor who has not previously examined the Veteran, to determine the nature and etiology of any hypertension disability. The examiner must review the claims file, including this Remand and the lay evidence of record and should indicate that review in the examination report. After conducting a review of the claims files, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that hypertension is etiologically related to active service or any event, disease, or injury during service, including whether hypertension (1) began during active service or is related to any event, injury, or disease during service, (2) is related to environmental hazard exposure in the Gulf War, (3) manifested within one year after separation from service, (4) was noted during service with continuity of the same symptomatology since service, (5) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include right knee arthritis, or (6) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for any of the service-connected disabilities, to include right knee arthritis. A clearly stated rationale for each opinion offered should be provided and must not be based solely on the lack of an in-service record of the claimed disability. 5. Schedule the Veteran for a VA psychiatric examination with a psychiatrist or psychologist. The examiner must review all pertinent records associated with the claims file, including this Remand and the Veteran’s September 2019 Board hearing transcript, and indicate review of the file in the report. Any studies or tests deemed necessary should be performed. The examiner should provide a full multiaxial diagnosis of every psychiatric disability found, and should specifically state whether a diagnosis of PTSD or depression is warranted and why or why not. The examiner should reconcile that diagnosis with previous diagnoses of record. For each diagnosed psychiatric disability, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that each diagnosed psychiatric disability was incurred in, was caused by, or is causally related to any event or incident during active service. The examiner must reconcile that opinion with the opinion provided by private physician in April 2017. The examiner should address the lay statements of record regarding the changes in the Veteran's behavior after service. The examiner must consider and discuss those lay statements regarding symptoms during and since service and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion offered must be provided and must not be based solely on a lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.