Citation Nr: 21069154 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 14-30 810 DATE: November 17, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a headache disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1976 to November 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2013 and April 2015 by a Department of Veterans Affairs (VA) Regional Office. This case has a lengthy procedural history. In a July 2019 Board decision, the Board denied service connection for an acquired psychiatric disorder, sleep apnea and a headache disorder after previously remanding the claim for service connection for an acquired psychiatric disorder in December 2017. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an Order that vacated the Board's July 2019 decision based on a finding that the Board's analysis of the Veteran's acquired psychiatric disorder claim was inadequate, and remanded the matter on appeal for adjudication consistent with the instructions agreed upon by the parties in that Joint Motion for Remand. The case was then returned to the Board in January of 2021 at which time the three issues on appeal were once again respectively denied. The Veteran again appealed to the Court, and in response to the most recent Joint Motion for Remand, the Court vacated and remanded the Veteran's claim in October of 2021. In that Joint Motion for Remand, the parties agreed that the Board erred when it relied on the December 2018 VA opinion because it is inadequate for rating purposes. Although the Board regrets the additional delay, an additional remand is required for further development and adjudicative action in order to fully comply with the directive to obtain an adequate examination as stipulated in the most recent Joint Motion for Remand. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The parties initially agreed that the December 2018 VA examiner who offered a negative opinion in regard to this claimed condition failed to adequately consider lay evidence describing symptoms and behavior changes during and after service when providing an opinion, including lay statements provided by the Veteran's mother and two friends. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Further, the parties agreed that the VA examiner who provides a new VA opinion should address the August 29, 1977 service treatment record reflecting "left eye swelling." That record also notes that the Veteran "struck wall with eye" and "now complains of pain, throbbing, swelling." These noted issues should be addressed and reconciled by a VA examiner on remand to the extent possible. 2. Entitlement to service connection for sleep apnea and for a headache disorder is remanded. Here, the Veteran does not allege, and the record does not show, that sleep apnea and/or a headache disorder are directly or presumptively related to his active duty service. Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). Instead, it is contended that he has sleep apnea and a headache disorder that is secondary to his acquired psychiatric disorder. In that regard, the parties also agreed that, in accordance with the terms of the August 2020 remand, the issues of entitlement to service connection for sleep apnea and a headache disorder should again be remanded as inextricably intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed Cir. 2001) (holding that where "the underlying facts of the two claims are so intimately connected," such claims should be adjudicated together "in the interests of judicial economy and avoidance of piecemeal litigation"; see also Stegall v. West, 11 Vet.App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination reports should include discussion of the Veteran's documented medical history, lay assertions, and any conflicting evidence of record as well as a confirmation that the record was reviewed. All necessary special studies or tests must be accomplished. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine in regard to each identified psychiatric condition: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the disability had an onset in service or is otherwise related to an in-service injury, event, or disease. In so opining, the clinician is specifically asked to address, to the extent possible: 1. The lay evidence describing symptoms and behavior changes during and after service when providing an opinion, including lay statements provided by the Veteran's mother and two friends. 2. The August 29, 1977 service treatment record reflecting "left eye swelling" and nothing that the Veteran had "struck wall with eye" and "now complains of pain, throbbing, swelling." 2. If, and only if service connection is found to be warranted for an acquired psychiatric condition, an additional opinion should be obtained from an appropriately situated VA examiner following a confirmation of a record review that addresses: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed (a) sleep apnea and/or (b) headache condition is (i) proximately due to OR is (ii) aggravated beyond its natural progression by his newly service-connected acquired psychiatric condition. A complete rationale must be provided for all opinions. This rationale cannot be solely predicated solely on the absence of in-service evidence but must consider the broader evidentiary picture, including lay evidence. 3. Thereafter, readjudicate the claims on appeal. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning these matters to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.