Citation Nr: 21069045 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-34 393 DATE: November 17, 2021 ORDER New and material evidence has been received and the petition to reopen the claim of entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and/or major depressive disorder (MDD) with anxious distress, is remanded. FINDINGS OF FACT 1. A May 2014 rating decision denied entitlement to service connection for obstructive sleep apnea. The Veteran did not appeal this decision, and new and material evidence was not actually or constructively received within one year of its issuance. 2. Evidence added to the record more than one year after the May 2014 rating decision has not been previously considered and relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for obstructive sleep apnea. CONCLUSIONS OF LAW 1. The May 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received and the criteria for reopening the claim of entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1995 to October 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2017 and November 2017 rating decisions by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In July 2020, the Veteran testified at a virtual hearing before the undersigned. At the hearing, the Veteran stated that he intended to submit additional statements from individuals who observed his changes in his behavior. However, the record does not show that any additional statements have been received. The Veteran is advised that he still has the opportunity to submit statements, if he so desires. Additionally, he has the option to appoint a representative if he wishes, including representation by a Veterans Service Organization at no expense. 1. New and material evidence has been received and the petition to reopen the claim of entitlement to service connection for obstructive sleep apnea is granted. In May 2014, the AOJ denied the Veteran's claim of entitlement to service connection for obstructive sleep apnea. The AOJ determined that the Veteran had a diagnosis of obstructive sleep apnea, but there was no evidence of incurrence in service and no link between the current sleep apnea and the Veteran's service. The Veteran did not appeal this determination and new and material evidence was not actually or constructively received within one year of the issuance of the May 2014 rating decision. Thus, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. A final claim may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. Evidence associated with the record more than one year after the May 2014 rating decision includes a lay statement from a person who slept in the same room as the Veteran and who reported observations of the Veteran's sleep disturbances in service. See August 2020 K.G. Statement. Because this evidence had not been previously submitted and because it relates to an unestablished fact necessary to substantiate the Veteran's claim, it is considered new and material, and the claim for a service connection for obstructive sleep apnea is reopened. REASONS FOR REMAND 2. Entitlement to service connection for sleep apnea is remanded. The evidence shows that the Veteran has obstructive sleep apnea, which was first diagnosed in 2002. See August 30, 2002 VA Sleep Lab Note. Moreover, he submitted statements from others regarding their observations of his sleep behavior in service and the record shows that he served at Atsugi, Japan in the late 1990s, during a period when a nearby waste incinerator was in operation. See, e.g., Service Treatment Records (STRs) (noting Veteran's presence at Atsugi). On remand, he should be afforded an examination and a medical opinion should be secured addressing whether his current disability is related to his in-service symptoms or exposures. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and/or MDD with anxious distress, is remanded. Remand is necessary, as the VA psychiatric examiner's opinion and addendum are inadequate. In this regard, the VA's examiner's opinion is supported by a conclusory rationale, as the examiner explained that "no cause was explained" for the Veteran's current depression when asked. Thus, the examiner relied on the Veteran to diagnose the nature of his depression, notwithstanding that the Veteran is not shown to have the education and training necessary to make a psychiatric diagnosis. Additionally, the examiner discounted the relevance of the anxiety reaction noted in the Veteran's STRs and stated that it would be speculative to relate his current depression to the anxiety reaction in service, as the Veteran did not "confirm or specify a continuation of anxiety/depression symptoms to the present." Moreover, the examiner did not consider the history of the Veteran's symptoms, as described by the Veteran and as contained in the lay statements that he submitted. On remand, an adequate medical opinion should be secured, and to ensure the adequacy of this opinion the Veteran should be afforded an updated examination. Updated Vet Center treatment records should be obtained, as well as updated VA and private treatment records. The matters are REMANDED for the following action: 1. Secure updated VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records, if any. 3. Secure complete Vet Center treatment records. 4. After completing #1, #2, and #3, schedule the Veteran for an examination with an examiner other than the September 2017 VA examiner addressing the nature and etiology of his acquired psychiatric disorder. The claims file should be made available to and should be reviewed by the examiner. The examiner is requested to respond to the following: (a) Please diagnose all acquired psychiatric disorders present since April 2017, to include MDD with anxious distress. (b) For each disorder diagnosed in subpart (a), opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during or is otherwise etiologically related to the Veteran's service, to include as a result of the anxiety reaction noted in the Veteran's STRs and/or stressful events in service. The examiner should discuss the lay statements that the Veteran has submitted in support of his claim, to include the reported changes in his behavior, see August 2020 Buddy / Lay Statement of K.G.; August 2020 Correspondence (Statement of V.S.S.) as well as his STRs noting an anxiety reaction in May 1996. In addressing this question, the examiner is advised that the Board has found credible the Veteran's report of fearing for his life following an incident involving aircraft on the flight deck, as it is consistent with the places and circumstances of his service and is corroborated by a fellow servicemember, which is credible supporting evidence that the Veteran's claimed stressor occurred. See August 2020 Buddy / Lay Statement of K.G. Moreover, any opinion that relies solely on the absence of documented treatment will be returned as inadequate. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case (e.g., lack of evidence relating to the specifics of this case, insufficient state of general medical knowledge, examiner's own limitations in expertise, etc.). 5. After completing #1, #2, #3, and #4, schedule the Veteran for an examination to determine the nature and etiology of his sleep apnea. The claims file should be made available to and should be reviewed by the examiner. Any necessary testing should be performed. The examiner is requested to respond to the following: (a) Please diagnose all current sleep disorders present since April 2017, to include obstructive sleep apnea. (b) For each disorder diagnosed in subpart (a), opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder: (1) had its onset during or is otherwise etiologically related to the Veteran's service, to include conceded environmental exposures therein; (2) is proximately due to a psychiatric disorder, if service-connected pursuant to #3 above; or (3) has been aggravated (worsened beyond natural progression) by a psychiatric disorder, if service-connected pursuant to #3 above. In addressing (b)(1), the examiner should discuss the lay statements that the Veteran has submitted in support of his claim, to include the reported sleep behaviors observed by a fellow servicemember (August 2020 Buddy / Lay Statement) as well as his STRs noting an anxiety reaction while lying in his rack in May 1996. Additionally, the examiner should discuss the effect of conceded environmental exposures from the Shinkampo Incinerator Complex, which was in operation during the Veteran's service in Atsugi, Japan, as well as the Veteran's initial diagnosis of obstructive sleep apnea in 2002 by a VA sleep study. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case (e.g., lack of evidence relating to the specifics of this case, insufficient state of general medical knowledge, examiner's own limitations in expertise, etc.). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.