Citation Nr: 21065782 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-34 550 DATE: October 27, 2021 REMANDED Entitlement to service connection for the Veteran's acquired psychiatric condition, claimed as anxiety and depression, is remanded. Entitlement to service connection for the Veteran's sleep apnea disability, as secondary to the Veteran's acquired psychiatric disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2001 to March 2009. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on her June 2017 VA Form 9. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2018, the Veteran submitted a RAMP opt-in form choosing two review lanes. After the RO requested further clarification, the Veteran clarified that she wanted her claims adjudicated in the Higher Level Review lane. See October 2018 RAMP Opt-In Election Form. However, at the Veteran's July 2021 Board hearing, the Veteran opted to keep her appeal in the Legacy appeals system. See July 2021 Board Hear. Trans. p. 2. 1. Service Connection for the Acquired Psychiatric Condition The Board finds that the claim for service connection for the Veteran's acquired psychiatric condition must be remanded for a new VA examination and outstanding treatment records. Here, the Veteran was afforded a VA examination in August 2015. The August 2015 VA examiner opined that the Veteran did not have a current diagnosis of anxiety or depression that was incurred in or caused by the Veteran's 2006 depression that occurred in service. See August 2015 VA Examination. In support of this finding, the examiner noted that the Veteran's in-service depression and anxiety symptoms were resolved according to the Veteran's 2007 report of medical history. Id. Moreover, the examiner opined that the Veteran was experiencing anxiety in the context of a stressful work and home environment, which was a normative stress reaction that did not meet the DSM-V criteria for a mental health diagnosis. However, the Board finds that the August 2015 examination is inadequate because the examiner did not take into account the Veteran's counseling in 2009 prior to separating from service and the Veteran's lay statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, the Veteran's February 2009 service treatment record (STR) notes that she received counseling in 2009 within 89 days before discharge. See February 2009 STRs. Additionally, the examiner did not address the Veteran's 2009 counseling session and ascertain whether it was related to her anxiety and depression symptoms. Further, although the examiner found that her depression and anxiety symptoms were resolved, the Veteran testified that her depression and anxiety symptoms continued throughout service and after service. See July 2021 Board Hear. Trans. p. 5. The Veteran also testified that she believes that she did not receive a thorough medical examination and review of her psychiatric symptoms because she was pregnant at the time of discharge and could not take Prozac for her psychiatric symptoms. Therefore, the Board finds that a new VA medical opinion is required to properly adjudicate this claim. Moreover, the Veteran testified that she received treatment for depression in approximately August 2009. See July 2021 Board Hear. Trans. p. 6. However, these treatment records are not in the Veteran's claims file. Because the primary issue in the Veteran's case is whether she has a current psychiatric disability that began in service and persisted after service, the Board finds that these records are critical to adjudicating this claim and a remand is necessary. Based on the foregoing, the Board finds that a new VA examination is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner should determine whether the Veteran has a current psychiatric condition that is related to service. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of her acquired psychiatric condition. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). 2. Service Connection for the Veteran's Sleep Apnea The Board also finds that the Veteran's claim for service connection for her sleep apnea must be remanded for a VA examination. To date, the Veteran has not been afforded a VA examination for her sleep apnea condition. The VA must provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for finding that the disability may be associated with service is low. Id. A Veteran is competent to report his observable symptoms and history, including the onset and timing of symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran contends that her sleep apnea is related to her psychiatric condition. See July 2021 Board Hear. Trans. p. 14. Additionally, the Veteran's STRs show that the attending physician believed that her 38-pound weight gain in service was due to her Zoloft prescription for her in-service anxiety. See March 2006 STR. As the record evidence tends to show that the sleep apnea may be related to her psychiatric condition or weight gain due to service, the Board finds that the Veteran should have been afforded a VA examination. Accordingly, the Board finds that the issue of service connection for the Veteran's sleep apnea disability must be remanded to obtain a VA examination. See, McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also, 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examiner should determine whether the Veteran's psychiatric condition caused and/or aggravated her sleep apnea condition, including taking into account how her prescriptions may have contributed to her weight gain. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of her sleep disability. See, Smith, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Ask the Veteran to complete and return a VA Form 21-4142 for all treatment records for her post-service depression and anxiety treatment. 2. After the item in Part (1.) is completed, schedule the Veteran for a VA examination with an appropriate clinician to determine whether the Veteran has a current psychiatric condition, and if so, the nature and etiology of the condition. The Veteran's claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. For all diagnosed psychiatric conditions: a. Identify the Veteran's current psychiatric condition by diagnosis. Please take into account the Veteran's report of persistent anxiety and depression symptoms beginning in service and continuing throughout the period on appeal. See July 2021 Board Hear. Trans. pp. 5-9. b. For each diagnosis, please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed psychiatric condition is the result of any incident in service, had its clinical onset during service, or is etiologically related to the Veteran's active duty service in any way? Please address and provide an explanation. For the purpose of providing the opinion requested, please accept as valid the Veteran's statements that she has experienced anxiety and depression since service and state whether a nexus between the Veteran's reported psychiatric symptoms and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements) c. For the Veteran's sleep apnea disability, please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA is the result of any incident in service, had its clinical onset during service, or is etiologically related to the Veteran's active duty service in any way? d. If you find that the Veteran's psychiatric condition is related to service, please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused by her psychiatric condition. e. If you find that the Veteran's psychiatric condition is related to service, please state whether it is at least as likely as not that the Veteran's sleep apnea was aggravated by her service-connected psychiatric condition. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). a. In providing a response to Part (e), please take into account the effects of the Veteran's Zoloft prescription on the Veteran's weight gain. See March 2006 STR. For the purpose of providing the opinion requested, please accept as valid the Veteran's statements that she believes that her sleep apnea is related to her acquired psychiatric disorder and state whether a nexus between the Veteran's reported psychiatric symptoms and her sleep apnea is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.