Citation Nr: 21069276 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-52 501 DATE: November 18, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression is remanded. Entitlement to service connection for a headache disability, to include migraines is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from April 1967 to March 1970. See DD Form 214. Although the appeal for service connection for PTSD has been treated as one for new and material evidence, the Board notes that following the most recent, September 2007 final denial by the RO, service personnel records were submitted, and these were not part of the record at the time of the prior denial. See September 2007 Notification Letter; see August 2007 Rating Decision-Narrative; see Military Personnel Record received April 5, 2014. Due to the relevant, newly submitted service personnel records, this issue must be reconsidered on a de novo basis, as opposed to determining whether new and material evidence has been received to reopen a previously denied claim. 38 C.F.R. § 3.156(c) (2021). A claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record reflects mental disorders other than the claimed PTSD, to include a history of depressive disorder, and a current diagnosis of anxiety disorder. See Sepulveda VA treatment records received August 2015 in CAPRI. Thus, pursuant to the holding in Clemons, the Board has more broadly characterized the psychiatric claim on appeal, as reflected above. The Veteran was afforded a Board hearing before the undersigned in July 2021. See July 2021 Hearing Transcript. REASONS FOR REMAND The Board observes that some of the scanned service treatment records with receipt dates of September 24, 2006 and April 5, 2014, are not legible. See September 2006 STR; see April 2014 STR. On remand, legible service treatment records should be scanned and associated with the record. In addition, in light of the Veteran's service in Vietnam during the Vietnam era, and his statements regarding Agent Orange exposure, the Board is requesting the examiners to also consider herbicide exposure. See July 2021 Hearing Transcript. 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded. The Veteran claims entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. See April 2014 VA 21-526EZ, Fully Developed Claim (Compensation). VA treatment records show the Veteran has a diagnosis of anxiety disorder not otherwise specified, with a history of depressive disorder. See Sepulveda VA treatment records received August 2015 in CAPRI. The Veteran has reported in-service stressors to include witnessing individuals dying, to include a motorcyclist who became stuck in the wheel well of a truck, as well as a "new recruit" who was pinned down by a rolled truck in several inches of water; an incident where he lost the brakes while driving a five-ton, armor-plated dump truck down a hill and had to jump from it; experiencing rockets slamming into the base or mortar attacks on the road; having to haul Agent Orange in giant bladders to landing zones, and instances of harassment from a sergeant. See Sepulveda VA Medical Center treatment records received August 2015 in CAPRI; see June 2007 Correspondence. Additionally, in November 2006 the Veteran reported that he saw a psychiatrist in the Army due to a problem he was experiencing with a Sergeant. See Sepulveda VA Medical Center treatment records received March 2007 in CAPRI. Service personnel records reflect instances of misconduct; the Veteran has reported that he was demoted while in service; and the Veteran's representative has suggested the reductions in rank corroborate instances of harassment while in service. See Military Personnel Record; see Sepulveda VA Medical Center treatment record received August 2015 in CAPRI; see July 2021 Hearing Transcript. The Veteran has reported that since discharge from service, he has experienced nightmares, depression, anxiety, hatred, loathing, resentment and mental stress. See June 2007 Correspondence. The Board is aware that there was a September 2014 VA psychology appointment for which the Veteran did not show up; however, the Board is also cognizant that the Veteran has experienced homelessness intermittently throughout his appeal. See C&P Exam. Further, in November 2016 Dr. A. Gomez opined that the Veteran's PTSD had most likely been present since and exacerbated by his service in the military; however, no reasoning was provided for the opinion. See Sepulveda Ambulatory Care Center treatment records received November 2016 in CAPRI. Here, the Board finds that a VA examination is necessary to ascertain the nature and etiology of the Veteran's acquired psychiatric disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a headache disability, to include migraines is remanded. The Veteran claims entitlement to service connection for a headache disability to include migraines. See April 2015 VA 21-526EZ, Fully Developed Claim (Compensation). He contends that his headaches may also be secondary to his tinnitus, or according to his representative, result from his psychiatric disorder and related stress and anxiety. See July 2021 Hearing Transcript. The Veteran was afforded a July 2015 VA examination for his headaches. The examiner opined that it was less likely than not the migraine headaches incurred in or were caused by an in-service injury, event or illness, and per his own words there did not seem to be an association between the headaches and ringing in his ears. See July 2015 VA Examination Headaches (including Migraine Headaches) Disability Benefits Questionnaire. In August 2015 and October 2016 the Veteran contended that the examination was inadequate. See August 2015 Notice of Disagreement (NOD); see October 2016 Form 9. Indeed, the examiner's opinion is inadequate where there was no consideration of whether there is any incremental increase, and the reasoning is based on an incomplete picture where the Veteran has suggested that the ringing in his ears may bring on his headaches. See July 2021 Hearing Transcript. It is well established that once VA provides an examination in a service connection claim, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a VA examination to assess the nature and etiology of the Veteran's headache disability to include migraines, and to include as secondary to service-connected tinnitus is necessary. See August 2015 Rating Decision-Codesheet. Additionally, if an acquired psychiatric disorder is service connected, considering the examiner's discussion of headaches being related to stress and anxiety, a VA examiner should provide an opinion as to whether the headaches are secondary to the psychiatric disability. 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran claims entitlement to service connection for obstructive sleep apnea. See April 2015 VA 21-526EZ, Fully Developed Claim (Compensation). He has reported experiencing sleep apnea symptoms to include sleeping only short periods with awakenings beginning in service, and continuing after separation from service. See July 2021 Hearing Transcript. VA treatment records show that the Veteran was diagnosed as having obstructive sleep apnea in August 2011. See Sepulveda VA Medical Center treatment records received June 2012 in CAPRI. In November 2016 Dr. A. Gomez opined that the Veteran's sleep apnea had most likely been present since and exacerbated by military service; however, no reasoning for the opinion was provided. See Sepulveda Ambulatory Care Center treatment records received November 2016 in CAPRI. Here the Veteran has competently and credibly reported in-service sleep related symptoms, and there is a current diagnosis of sleep apnea, such that the Board finds that a VA examination is necessary to ascertain the nature and etiology of the Veteran's obstructive sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Request legible service treatment records be scanned and associated with the record. 2. Schedule the Veteran for an examination by appropriate clinician(s) to determine the nature and etiology of any acquired psychiatric disorder, headache disability to include migraines, and obstructive sleep apnea. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Acquired Psychiatric Disorder, to include PTSD (a) Is any acquired psychiatric disorder at least as likely as not related to an in-service injury, event, or disease. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to an in-service stressor. The examiner should consider all of the Veteran's reported in-service stressors in forming his opinion. (b) Is it at least as likely as not that the Veteran has psychoses that (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (c) Is the acquired psychiatric disorder at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Headache Disability, to include Migraines (d) Is any headache disability, to include migraines at least as likely as not related to an in-service injury, event or disease? (e) Is it at least as likely as not that the Veteran has migraines that (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (f) Is the acquired headache disorder at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. (g) Is any headache disability at least as likely as not (i) proximately due to service-connected tinnitus, or (ii) underwent any incremental increase in disability, regardless of its permanence by service-connected tinnitus? (h) If any acquired psychiatric disorder is at least as likely as not related to service, then the examiner must also consider whether it is at least as likely as not the headache disability is (i) proximately due to the acquired psychiatric disorder, or (ii) underwent any incremental increase in disability, regardless of its permanence by the acquired psychiatric disability? Sleep Apnea (i) Is any sleep apnea disability at least as likely as not related to an in-service injury, event or disease? (j) Is the sleep apnea at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. All Opinions Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. (Continued on the next page) IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.