Citation Nr: 21069188 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 19-21 972 DATE: November 17, 2021 REMANDED Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service with the Army from September 1959 to September 1962. He then served with the Army National Guard of Maryland from September 1962 to February 1969. This matter is on appeal to the Board of Veterans' Appeals (the Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified in a video teleconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. In December 2020, the Board remanded the Veteran's claims for additional development. The Board regrets the delay, but finds another remand is warranted. 1. Entitlement to service connection for PTSD is remanded. In January 2017, the Veteran reported the following stressor events from mid-September through December 1959: exposure to a mine explosion in training and an attack by looters during post-hurricane deployment in South Carolina. The Veteran reported working with the Military Police (MP) at Nike Hercules nuclear missile sites. No specific dates were provided for this work patrolling the topside launch areas with dogs. However, he reported being confined to the missile pits with the dogs during the Bay of Pigs. Finally, the Veteran reported from September 1962 to February 1969 he had a covert assignment with top secret clearance. He provided protection to defectors and transported classified information from missile bases. In March 2017, the Veteran was asked to complete a VA 21-0781 and provide specific details for his reported stressor incidents. A request for a formal finding for his PTSD by the Joint Services Records Research Center (JSRRC) was made in April 2017. The requestor indicated that his service treatment records (STRs) and personnel records did not substantiate his claim. The Veteran was informed his response did not meet the minimum level of detail required for the VA to request assistance from JSRRC. Additional information was requested about the following incidents: post-hurricane deployment in South Carolina, his covert assignment, and his work as a courier of top-secret information. The Veteran responded to this request in April 2017. Regarding his post-hurricane deployment, he reported he was with the 3rd Platoon on Tank Hill, Fort Jackson, South Carolina. His unit was ordered to go to the hurricane site in Columbia about mid-October 1959 to secure the area. From October 16, 1962 to October 28, 1962, he was with the Baltimore/Washington Air Defense Command, A Battery, 4th Missile Battalion, 1st Artillery in Phoenix, Maryland. At this time, he patrolled and secured nuclear missile sites. During the Cuban Missile Crisis, he was kept in the missile pits with the dogs. Finally, the Veteran reported from September 1962 to February 1969 that he worked on the security detail protecting communist defectors with the D Battery, 1st Missile BN, 70th Artillery. He reported being shot at on several occasions while working as a bodyguard. Additionally, he reported transporting highly classified information from missile bases to the Baltimore-Washington region including the Pentagon. The Veteran contended that his DD 214 incorrectly listed his military occupational specialty (MOS) as a general clerk. It should state that he worked as an MP. In May 2017, a new JSRRC review was found necessary after receiving the Veteran's response with additional information about his reported in-service stressor events. However, the June 2017 JSRRC request only addressed the 1959 post-hurricane response in South Carolina. The Defense Personnel Records Information Retrieval System (DPRIS) response in August 2017 indicated that information regarding his unit of assignment was incomplete or incorrect. Therefore, the request was not researched and was closed in the JSRRC database. In September 2017, a screenshot of a request to reopen the claim was entered into the record. At this time, apart from the request to reopen there was no further development done to verify the stressor events reported by the Veteran, or further attempts to verify incomplete or incorrect information with him. In December 2020, the Board remanded the Veteran's claim for additional development. The RO was directed to try and corroborate the following claimed stressor events: post-hurricane deployment in 1959, patrols during the Cuban Missile Crisis, work as a security detail for communist defectors, participation on a missile site infiltration team, and work as a courier of top-secret information. In January 2021, a Record Research Response for the post-hurricane deployment in 1959 stressor was received. The response indicated that the Military Records Research Center was unable to research this request because a researchable stressor event or incident was not provided. Subsequent development letters were sent to the Veteran in February 2021 and April 2021. He was asked to provide additional information about his claimed stressful event(s) because he did not meet the minimum level of detail required for the VA to request assistance from the JSRRC in verifying these events/incidents. Specifically, the Veteran was asked to provide a 60-day window of when the stressful events occurred, documentation such as a buddy statement from people who might have witnessed the stressful event or orders for specific mission(s) he was assigned to participate in. In June 2021, the Veteran called to say he had no additional information to provide. While the record shows a Record Research Response regarding the Veteran's claimed post-hurricane deployment stressor, there is no indication the RO contacted the JSRRC (now the Army Records Management and Declassification Agency (RMDA)) or any other appropriate entity to attempt to verify the Veteran's other claimed stressors. Therefore, the duty to assist the Veteran in developing the record has not yet been discharged and there was not substantial compliance with the December 2020 Board remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's military personnel records show from September to November 1959 he was at Fort Jackson in South Carolina. This aligns with his report of being deployed as part of the post-hurricane response in mid-October 1959. The Board also takes judicial notice that a hurricane did make landfall in South Caroline in late September of that year, which is very close to the Veteran's recollection. The January 2021 Record Research Response for the post-hurricane response stressor indicated this request could not be researched because a stressor event or incident was not provided. However, the Veteran has provided a stressor event or incident. He reported deployment as part of a post-hurricane response in October 1959 during which he was attacked by looters. Given that the circumstances of the Veteran's service at the time is consistent with the date and location of a documented hurricane, the Board finds that this stressor has been sufficiently verified. Additionally, the following reported stressor events require further development by RMDA: patrols during the Cuban Missile Crisis, security detail for defectors, missile site infiltration team, and transportation of classified information. The Veteran's personnel records show by November 1959 he was en route to his initial assignment at the Maryland Army Chemical Center. One year later, he received a secret security clearance while with the Army Chemical Center. The Veteran's DD 214 listed him as a general clerk. His separation paperwork for the National Guard listed his MOS as Hercules missile crewman and his civilian occupation as dog handler, USP&FO for Maryland. The Veteran reported a stressor incident during the Cuban Missile Crisis (October 16, 1962 to October 28, 1962). He refers to this event interchangeably as the Bay of Pigs even though they were separate events. He reported this incident occurred when he was with the Baltimore/Washington Air Defense Command, A Battery, 4th Missile Battalion, 1st Artillery in Phoenix, Maryland. However, his records show that by September 1962 he had transitioned to the National Guard of Maryland. The Veteran reported from September 1962 to February 1969 (his period of service with the National Guard) he was with the D Battery, 1st Missile BN, 70th Artillery. Furthermore, the Veteran reported from September 1962 to February 1969 he worked as part of a security detail for defectors, an infiltration team testing missile site security, and transported classified information. His September 2020 hearing testimony appeared to place these incidents around and after the Cuban Missile Crisis. The January 2021 Record Research Response does not show an attempt to further develop the Veteran's reported stressor events apart from the hurricane response as requested in the December 2020 Board remand. Therefore, a remand is required to further attempt to corroborate the Veteran's reported stressors. Once this information has been verified, an examination by an appropriate medical provider is necessary to determine the nature and etiology of the Veteran's PTSD in order to make a fully informed decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends his sleep apnea is related to his PTSD. In an April 2017 statement from the Veteran, he reported that his pulmonary and sleep specialist attributed his high stress levels to his severe obstructive sleep apnea. In an August 2021 VA examination, the examiner opined the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. There was no evidence of complaint, diagnosis, or treatment for sleep apnea during service in the medical records. It was less likely than not that the Veteran's PTSD proximately caused or aggravated his sleep apnea as there was no evidence of complaint, diagnosis, or treatment for sleep apnea and PTSD during his military service. The Veteran's sleep apnea, which clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner's rationale was that aggravation was not found. The record does not show that obstructive sleep apnea existed prior to service. A September 1959 service treatment record showed a normal clinical examination except for seasonal hay fever controlled by medication. A June 1962 treatment note indicated he was seen for allergic rhinitis. However, generally, he denied ear, nose, and throat issues including sinusitis, asthma, and shortness of breath. Therefore, the August 2021 examiner's finding that the Veteran's sleep apnea existed prior to service was inconsistent with the evidence of record. Additionally, the examiner's rationale that the Veteran did not complain of, was not diagnosed with, and was not treated for sleep apnea or PTSD in service was inadequate. In April 2017, he reported that his pulmonary and sleep specialist attributed his high stress levels to his severe obstructive sleep apnea. The Veteran also submitted an excerpt from a book entitled "Medical Evidence in Veterans' Disability Rating," which discussed sleep apnea secondary to service-connected PTSD. The provided excerpt discussed the higher prevalence of sleep apnea among veterans with PTSD than the general population. People diagnosed with PTSD often reported sleep disturbances. Untreated sleep apnea was believed to accentuate sleep related symptoms of PTSD. In fact, there was growing evidence that disturbed sleep was more likely a core feature of PTSD and not just a secondary symptom. The examiner's rationale failed to address any relevant medical evidence of record and the treatise evidence submitted by the Veteran. Since the issue of service connection for the Veteran's sleep apnea is intertwined with his PTSD claim, which requires further development, remand is warranted. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's in-service stressors, including post-hurricane deployment in 1959, patrols during the Cuban Missile Crisis, work as security detail for communist defectors, participation on a missile site infiltration team, and work as a courier of top-secret information. Contact the RMDA or any other appropriate entity to attempt to verify the Veteran's claimed stressors. All attempts to verify the Veteran's reported PTSD stressors must be documented in the claims file. If any records or information sought are unavailable, the AOJ should issue a formal finding documenting such a fact and the reason for the unavailability. 2. Take appropriate steps to obtain any outstanding VA and non-VA treatment records. 3. Regarding the Veteran's claimed PTSD, if, and only if, any stressor incident is verified, the claims file should be forwarded to an appropriately qualified clinician. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. The reviewing clinician is asked to opine on the following: If it is at least as likely as not that his PTSD had its onset in or was otherwise etiologically related to any event or circumstance of his service. 4. Obtain an addendum opinion from the August 2021 VA examiner regarding service connection for sleep apnea. If the August 2021 examiner is not available, the opinion with rationale should be rendered by another qualified clinician. The reviewing clinician is asked to opine on the following: If it is at least as likely as not that the Veteran's sleep apnea had its onset in or was otherwise etiologically related to any event or circumstance of his service. If the answer to (a) is no, is it at least as likely as not that the Veteran's PTSD proximately caused or aggravated his sleep apnea. If aggravation is found, the examiner should state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record as well as the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The supporting rationale for all opinions rendered must be provided. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a SSOC and be afforded the opportunity to response. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.