Citation Nr: 21063728 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-35 176 DATE: October 15, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep apnea to include as secondary to an acquired psychiatric disorder to include PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1952 to January 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ). In January 2019, the Board denied these claims. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In October 2020, the Court issued a Memorandum Decision that set aside the January 2019 Board decision and remanded the claims. The case was returned to the Board for compliance with the directives contained in the October 2020 Memorandum Decision. In May 2021, the matters were remanded to the agency of original jurisdiction (AOJ) for development consistent with the Memorandum Decision. They have been returned to the Board. 1. Service connection for an acquired psychiatric disorder to include PTSD is remanded. In May 2021, the Board remanded this claim to afford the Veteran a VA examination with opinion by an appropriately qualified medical professional to determine the etiology of his acquired psychiatric disorder to include PTSD. This was to comply with the Memorandum Decision in which the Court noted that the Board rejected the Veteran's lay testimony concerning his in-service stressor based on the lack of corroborating evidence, yet further noted that 38C.F.R. §3.304(f) specified that corroborating evidence is not necessary if a VA psychiatrist or psychologist: confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. In the May 2021 remand, the Board directed that an appropriate examiner opine as to whether it is at least as likely as not that the Veteran has an acquired psychiatric disorder to include PTSD that is related to his service. In providing the requested opinion, the examiner was directed to consider the Veteran's report of seven enumerated in-service stressors. While examination was accomplished via video telehealth in June 2021, the examiner did not render an opinion as requested. Rather, they stated: There seems to be a clear neurocognitive deficit present, however upon requesting neuropsych evaluation to sensitively differentiate between the neurocognitive profile, versus mood/trauma disorders, the examiner learned that the family declined this recommendation. Therefore, it is not possible to offer an opinion given the missing information. Furthermore, the full PTSD criteria (namely, Criterion H) were not met, and the adjustment disorder diagnosis best represents his negative mood states, which are a result of multiple origins, to include traumatic stress exposure and medical/cognitive decline. In a July 2021 letter, the Veteran's son indicated that the Veteran indeed was willing to undergo any additional examination or testing, that testing was not refused and they did not know why that was recorded as being the case. Under the circumstances, we find that the appeal should be returned in order to accomplish all relevant examination and/or testing to include that indicated by the May 2021 VA examiner. Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). 2. Service connection for sleep apnea is remanded. As observed in the May 2021 Board remand, the claim of entitlement to service connection for sleep apnea is inextricably intertwined with the claim of service connection for an acquired psychiatric disorder to include PTSD. In other words, development of the acquired psychiatric disorder claim may impact the Veteran's sleep apnea claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other. The Board further notes that if, and only if, it is determined that the Veteran's acquired psychiatric disorder is service connected, then a medical opinion should also be obtained as to whether the Veteran has sleep apnea that is caused or aggravated by the acquired psychiatric disorder. The matters are REMANDED for the following action: 1. Return the claims folder to the clinician who conducted the June 2021 examination or a suitable substitute to determine the etiology of his acquired psychiatric disorder to include PTSD. The claims folder should be made available to the examiner for review. Conduct all examination and testing necessary, to include but not limited to the neuropsych evaluation to sensitively differentiate between the neurocognitive profile, versus mood/trauma disorders referred to by the June 2021 examiner. Based on the review of the claims folder and examination of the Veteran, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has an acquired psychiatric disorder to include PTSD that is related to his service. In providing the requested opinion, the examiner should consider the Veteran's report of in-service stressors, specifically the following: 1) while onboard a troop transport to sea, he witnessed the aftermath of soldiers who were killed by a hatch cover falling on them; 2) during service in Japan in January 1953, while on a train, three men stuck their heads out a window and were decapitated by a telephone pole; 3) during service in Japan for a training exercise in 1955, he witnessed men who were smashed in between his ship and a landing craft; 4) during service in Fuji in 1955, a soldier was killed in an accident when operating a tank; 5) during service on Honshu Island in 1954, he witnessed eight men who were accidentally run over by a tank at night; 6) on Honshu Island, three women were accidentally killed by the Veteran who were cleaning up ammunition that he fired; and 7) in January 1953, while riding in a tank, he witnessed a soldier fall into a wheel and was killed. Additionally, if, and only if, it is determined that the Veteran has an acquired psychiatric disorder to include PTSD that is service connected, then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the Veteran has sleep apnea that is caused or aggravated by the acquired psychiatric disorder to include PTSD. If the examiner finds that the sleep apnea is aggravated by the acquired psychiatric disorder, then he/she should quantify the degree of aggravation, if possible. If the Veteran addresses combat, personal assault or terrorist/hostile activity such must be noted in the report. A rationale for all opinions expressed should be provided. 2. Review the claims file to ensure that all the foregoing requested development is completed, and arrange any additional development indicated. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.