Citation Nr: 21003216 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-02 916 DATE: January 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety is granted. REMANDED Entitlement to an initial compensable evaluation for migraine headaches is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected PTSD is remanded. Entitlement to service connection for hypertension (HTN), to include as secondary to obstructive sleep apnea (OSA) and/or service-connected PTSD is remanded. Entitlement to service connection for insomnia, to include as secondary to obstructive sleep apnea (OSA) and/or service-connected PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the U.S. Navy from June 1986 to June 1989 and from January 1991 to June 1991, with reservist duty from June 1989 to July 2001. This case comes before the Board on appeal of an April 2018 rating decision. In October 2020, the Veteran testified in front of the undersigned Veteran Law Judge (VLJ) via live video conference. A transcript of the proceeding has been associated with the record. The Board notes that as the scope of the Veteran’s claim of service connection for PTSD encompasses other psychiatric disorders that have been raised by the record, such as major depression, depressive disorder, and anxiety, the Board has recharacterized the issue on appeal as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board adds that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. Here, the evidence of record has reasonably raised the issue of TDIU. In his October 2020 hearing, the Veteran testified that his migraines and other alleged disabilities precludes employment. In light of the Court’s holding in Rice, the Board has considered the TDIU claim as part of his pending initial rating claim and is listing the raised TDIU claim as an issue on appeal. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125(a)), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether the veteran “engaged in combat with the enemy.” Id. If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to “fear of hostile military or terrorist activity,” then the veteran’s testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant’s testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). 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. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety Here, the Veteran contends that his psychiatric disorder was caused by his active duty service. Based on the evidence, the Board agrees. At the outset, the Veteran has current diagnoses of chronic PTSD and depressive disorder. See VA treatment records. Thus, the first element of service connection is met. Likewise, the second element is met. Specifically, the Veteran reported that he served as a naval hospital corpsman responsible for “tagging and bagging,” which meant that created the identification toe tags for bodies that were headed to the morgue. He added that the “bagging” phase was the most difficulty as he was involved with placing recently deceased patients into a vinyl bag. He explained that some patients became incontinent of stool and urine during the bagging process, but he prioritized making the patients presentable to their loved ones. Additionally, the Veteran reported that while stationed at Balboa Naval Hospital as an active drilling reservist, he had to identify the remains of servicemen involved in a helicopter crash. He explained that due to the nature of the crash and crash site, it was difficult to identify which body parts belonged to the individuals involved in the crash. He served as an x-ray technician at that time and took on the duty of identifying the remains. He admitted that this day was and still remained the worst day of his career as a corpsman. To support the Veteran’s contentions, his military occupational specialty was as a naval hospital corpsman and x-ray technician. Therefore, his military occupation is in accordance with his statements and testimony of his in-service stressors. Moreover, the Veteran’s lay evidence is competent, credible and supported by military personnel records regarding his duties during service. See Cohen v. Brown, 10 Vet. App. 128 (1997); see also Doran v. Brown, 6 Vet. App. 283 (1994). As such, the second element is met. Therefore, to warrant service connection for PTSD, there must be medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). In that regard, in the February 2020 PTSD DBQ, the clinical psychologist opined that the Veteran’s PTSD is more likely than not the result of his military service. The psychologist reasoned that the Veteran’s responsibilities of “tagging and bagging” deceased veterans, as well as the experience of identifying body parts after the helicopter crash was severely traumatizing. The psychologist explained that the recent helicopter accident that killed Kobe Bryant triggered the Veteran. He added that when the Veteran contacted him for treatment the Veteran was suffering from a panic attack. The psychologist concluded that the traumatic event(s) that occurred while the Veteran was in the Navy continued to affect his functioning. The Board finds the psychologist’s opinion to be competent, credible and highly probative. He examined the Veteran, accounted for his lay statements and provided an opinion based on medical principles and the evidence. Moreover, there are no contrary medical opinions on record. Accordingly, as the preponderance of the evidence is in support of the claim, service connection for PTSD is warranted. 38 C.F.R. §§ 3.303, 3.304. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). 1. Entitlement to an initial compensable evaluation for migraine headaches is remanded. Here, the Veteran contends that he is entitled to a compensable rating for his migraine headaches. Based on the evidence, a remand is necessary. Specifically, in June 2020, the Veteran was afforded a VA examination via telephone interview to determine the severity of his migraine headaches. The examiner indicated that the Veteran had chronic intermittent migraines and tension headaches that were moderate in nature. The Veteran experienced headache pain described as pulsating or throbbing head pain, pain localized to one side of the head, and pain that worsened with physical activity. The Veteran reported that he was sensitive to light and sound during a headache with typical duration of less than one day. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine pain once every month. Additionally, the examiner indicated that the Veteran’s headaches impacted his ability to work because the Veteran had to rest during symptomatic episodes. Although the examination appeared substantially complete, the Veteran testified that the examiner misstated the severity of his migraine headaches. The Veteran explained that during the phone interview he specifically told the examiner that he had no less than two to three migraine occurrences a month, and that those occurrences were debilitating. He added that he would have to lay down, “get away from everyone and everything” and consume heavy amounts of Motrin for relief. The Veteran testified that he even provided examples to the examiner to support his contentions. The Board finds the Veteran’s testimony to be competent and credible given that the Veteran is able to describe the severity and frequency of his migraine headaches. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, at the very least, the Veteran’s testimony would indicate a worsening of his service-connected tension headaches, which would require an examination to determine its severity. Accordingly, the Veteran should be afforded a VA examination whether in person or via a phone interview to determine the current severity of his service-connected migraine/tension headaches. 2. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected PTSD is remanded. Here, the Veteran contends that his OSA was incurred in service or is secondary to his PTSD. Based on the evidence, a remand is necessary. Specifically, the Veteran has a current diagnosis of obstructive sleep apnea. See Private treatment records. Additionally, the Veteran reported an incident where he was physically assaulted by his fellow servicemen that he believed caused a deviated septum which caused his sleep apnea. See Hearing testimony. Moreover, buddy statements from the Veteran’s brother and his roommate during service from January 1991 to June 1991. Both statements illustrated that the Veteran snored loudly, which they found were not normal. The Veteran’s brother explained that he did not snore prior to military service, but after he returned, he snored badly. See Statement in support; see also OSA statement in support. The statements from the Veteran, his brother, and roommate are competent as the statements describe lay observable symptoms. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that a VA examination is required where: (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability; but (4) there is insufficient medical evidence on file for the Secretary to make a decision on the claim. Based on the foregoing, a remand is warranted to determine the etiology of the Veteran’s OSA. 3. Entitlement to service connection for hypertension (HTN), to include as secondary to obstructive sleep apnea (OSA) and/or service-connected PTSD is remanded. Here, the Veteran contends that his HTN is secondary to his service-connected PTSD and/or his OSA. Based on the evidence, a remand is necessary. Specifically, the Veteran has a current diagnosis of HTN. Likewise, the Veteran contends that his hypertension may be secondary to his PTSD or sleep apnea because his blood pressure often corresponded to his stress level at work. He added that his doctors had indicated that his HTN may be related to his PTSD or his sleep apnea. Moreover, as decided herein, the Veteran is service connected for PTSD. Therefore, on remand the Veteran should be afforded a VA examination to determine the etiology of his HTN. 4. Entitlement to service connection for insomnia, to include as secondary to obstructive sleep apnea (OSA) and/or service-connected PTSD is remanded. Here, the Veteran contends that he has longstanding insomnia that may be secondary to his OSA or PTSD. The Veteran testified that he felt his insomnia had more to do with his PTSD and OSA due to his inability to get quality sleep. The Board notes that the Veteran does not have a current diagnosis of insomnia; however, his treatment records showed that he complained of worsening nightmare and resultant insomnia with anxiety. Based on the evidence, it is unclear if the Veteran’s insomnia is a symptom of his PTSD or OSA, or a separately diagnosable disability. On remand, the Veteran should be afforded a VA examination to determine whether his insomnia is a separate disability or symptom of his OSA or service-connected PTSD. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Here, the claim for entitlement to a TDIU is inextricably intertwined with the issue of entitlement to a higher rating for the Veteran’s migraine headaches, as well as his service connection claims, which are being remanded for further evidentiary development. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered now. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his migraine headaches. The VA examiner must review the complete claims file and must note that review in the report. 3. Additionally, schedule the Veteran for a VA examination to determine the etiology of his: (a) OSA; (b) HTN; and (c) insomnia. A copy of this REMAND must also be provided to the VA examiner(s). All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s OSA had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service? (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s OSA is caused by his service-connected PTSD? (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s OSA is aggravated (i.e. worsened beyond normal progression) by his service-connected PTSD? (d.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s HTN is caused by his service-connected PTSD and/or OSA? (e.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s HTN is aggravated (i.e. worsened beyond normal progression) by his service-connected PTSD and/or OSA? (f.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s insomnia, if diagnosed, had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service? (g.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s insomnia is caused by his service-connected PTSD and/or OSA? (h.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s insomnia is aggravated (i.e. worsened beyond normal progression) by his service-connected PTSD and/or OSA? The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). (Continued on the next page)   4. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 5. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal, including the inextricably intertwined claim. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.