Citation Nr: 21062505 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 08-30 615 DATE: October 7, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for obstructive sleep apnea (OSA) is reopened. REMANDED Entitlement to service connection for a left ring finger condition is remanded. Entitlement to service connection for an acquired psychiatric condition other than posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for headaches, to include as secondary to an acquired psychiatric disorder, is remanded. Entitlement to service connection for OSA, to include as secondary to an acquired psychiatric disorder, is remanded. FINDING OF FACT A March 2015 rating decision denied the Veteran's claim for service connection for OSA. The Veteran did not appeal or submit new and material evidence within a year of the rating decision; thus, the March 2015 rating decision became final. At the time of the March 2015 rating decision, the Agency of Original Jurisdiction (AOJ) found that there was insufficient nexus evidence to grant the claim. Since then, the Veteran provided medical literature suggesting a connection between OSA and psychiatric disorders. This evidence is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for OSA. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1977 with additional Reserve service until April 1994. He appealed numerous rating decisions by the Department of Veterans Affairs (VA) AOJ denying entitlement to service connection for the aforementioned issues. The procedural history of each appealed issue is further detailed below. Left Ring Finger Here, the Veteran appeals a January 2018 rating decision denying entitlement to service connection for a left ring finger condition. In September 2020, the Board initially remanded this issue to afford the Veteran a VA examination. In April 2021, the Board remanded a second time to obtain an adequate opinion. The appeal is now back before the Board. The Veteran claims he "broke his left ring finger in service while playing basketball and it has never healed correctly." See October 2017 VA Form 21-526b. In May 2021, a reviewing clinician opined that there is "no evidence of a left ring finger condition while in service," including at the Veteran's March 1977 separation examination. However, subsequent statements by the Veteran note the purported basketball game occurred during a period of active duty for training (ACDUTRA). See August 2006 behavioral health evaluation ("while at Summer Camp as a member of Reserve."), which was not considered by the reviewing clinician. Additionally, while the Veteran is not competent to opine on the etiology or diagnosis of his left ring finger condition, he is competent to recount the history and symptoms surrounding his painful ring finger. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this regard, the May 2021 medical opinion is inadequate as the Veteran's consistent statements are evidence of a left ring finger condition. Thus, a remand is required to obtain an adequate VA opinion that considers the lay and medical evidence of record. Acquired Psychiatric Condition Other than PTSD A January 2008 rating decision denied entitlement to service connection for PTSD. A subsequent June 2017 Board decision also denied entitlement to service connection for PTSD. However, a September 2018 Memorandum Decision by the Court of Appeals for Veterans Claims (Court) vacated the Board's decision with respect to entitlement to service connection for an acquired psychiatric disorder other than PTSD and remanded the appeal for further action. Since the September 2018 Memorandum Decision, the Board has remanded this issue in June 2019, September 2020, and April 2021. The Board apologizes for the additional delay, but another remand is required. The record reflects a diagnosis of adjustment disorder and depressive disorder. See May 2015 VA treatment records (adjustment disorder); November 2019 VA examination report (depressive disorder). In October 2020, a VA examiner provided an opinion regarding the etiology of the Veteran's psychiatric conditions other than PTSD. In the opinion, the reviewing clinician noted "there is no evidence of mental health treatment while the Veteran was on active duty" and "there is not sufficient evidence of record linking the Veteran's depression to military service as there is no evidence of depression in service that persisted beyond that time." See October 2020 VA medical opinion. For the diagnosis of adjustment disorder, the reviewing clinician merely stated "there is not sufficient evidence to show a link between the Veteran's treatment for adjustment disorder in 2015 and his military service." Id. After the April 2021 Board remand, a second opinion was obtained. In May 2021, a reviewing clinician stated that the prior examinations found no link between the Veteran's psychiatric condition and military service, and concluded "if the VARO feels this is not an adequate assessment of the Veteran, a new examination should be ordered." The Board agrees. The October 2020 and May 2021 medical opinions do not adequately discuss the nature and etiology of the Veteran's acquired psychiatric disorders, to include adjustment disorder and depressive disorder. Instead, they merely restate findings from prior examinations the Board and CAVC have found inadequate. Thus, a remand is required. Further, the Board notes the AOJ attempted to verify the Veteran's claimed in-service events, including that he witnessed an inmate sexual assault, among other assaults, while serving on ACDUTRA as a prison guard at Fort Leavenworth, Kansas in "May or June of 1986 or 1987." See April 2013 VA form 21-0781. The AOJ requested information from the Joint Services Records Research Center (JSRRC), but was informed by JSRRC that the Veteran's stressors could not be corroborated. See July 2013 VA memorandum. The JSRRC letter incorrectly noted the failed attempt to verify "attacks among inmates at Fort Leavenworth [that occurred] sometime between June and September 1977." Id. These dates are incorrect. The Veteran consistently stated this incident occurred during his Reserve duty and not during active duty. The record corroborates he served as a correctional police officer at Fort Leavenworth during Reserve service starting in October 1985. See military personnel records. Thus, the Board finds a remand is required to make further attempts to verify the Veteran's claimed in-service event. Headaches and OSA A January 2018 rating decision denied entitlement to service connection for headaches. In September 2020 and April 2021, the Board remanded this issue for further development. For OSA, a January 2019 rating decision denied reopening the Veteran's previously finalized claim for service connection, which was confirmed by a September 2020 Board decision. In June 2021, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated and remanded that part of the September 2020 Board decision. Pursuant to the Order above, the Board has reopened the Veteran's claim for service connection for OSA. These two issues are also currently before the Board. In part, the Veteran claims his headaches and OSA are secondary to his psychiatric disorder. See October 2017 Veteran claim; see also May 2020 Representative statement. As noted above, the Board must remand the issue of service connection for an acquired psychiatric disorder. Therefore, since the decision on service connection for an acquired psychiatric condition impacts a decision on entitlement to service connection for headaches and OSA, these issues are inextricably intertwined, and the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. Further develop the Veteran's claimed in-service event. Specifically, that he witnessed several assaults, including an inmate rape, while serving on ACDUTRA at Fort Leavenworth, Kansas as a correctional guard in either May or June of 1986 or 1987. Please see the April 2013 VA Form 21-0781 page 2 for more detail regarding the event. Contact any appropriate entity, to attempt to verify this stressor and document any response. 3. Thereafter, obtain an opinion from an appropriately qualified clinician, other than the clinician who provided the May 2021 VA opinion, to determine the nature and etiology of the Veteran's left ring finger condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: Is it at least as likely as not that the Veteran's current left ring finger condition was incurred in or is otherwise related to his reported accident playing basketball during ACDUTRA in the Reserve? The reviewing clinician should address the lay statements of record that the Veteran hurt his left ring finger during a period of ACDUTRA, including, but not limited to, (1.) the October 2017 VA Form 21-526b, and (2.) page 3 of the August 2006 behavioral health evaluation (submitted in April 2013) noting the Veteran broke his left ring finger "at Summer Camp as a member of the Reserve." In rendering this opinion, the reviewing clinician is advised the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After the development of #1-2 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician, other than the clinicians who rendered the opinions in December 2019, October 2020, and May 2021, to determine the nature and etiology of the Veteran's acquired psychiatric disorders other than PTSD, to include adjustment disorder and depressive disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. Following review of the record and examination of the Veteran, the examiner should identify all acquired psychiatric disabilities present. For each identified acquired psychiatric disability (other than PTSD) diagnosed during the appeal period, including adjustment disorder, depressive disorder, and anxiety disorder, provide an opinion for the following: Is it at least as likely as not (a 50 percent probability or more) that the acquired psychiatric disability was incurred in or is otherwise related to his time in service, to include pulling a soldier from a burning truck accident while serving on active duty in Germany, and/or witnessing a rape and other assaults while serving in the Reserve as a prison guard at Fort Leavenworth? The examiner must address the following in his/her opinions: (1.) April 2013 VA Form 21-0781 detailing the Veteran's traumatic events while serving on active duty and in the Reserve, and (2.) October 2013 M.H. statement corroborating the Veteran's event serving at Fort Leavenworth. The examiner should note May 2015 VA treatment records reflect diagnosis of adjustment disorder, the November 2019 VA examination report diagnosed the Veteran with depressive disorder, and September 2016 Fort Rucker treatment records note a diagnosis of anxiety disorder. The examiner should not consider prior VA opinions in formulating his/her opinion as they have been deemed inadequate. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) 5. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran with an SSOC and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.