Citation Nr: 21069484 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-02 483 DATE: November 18, 2021 ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for chronic fatigue syndrome (CFS). 3. Entitlement to service connection for sleep apnea. 4. Entitlement to a disability rating in excess of 10 percent for lumbar spine facet arthropathy (back disability) prior to April 27, 2015. 5. Entitlement to a disability rating in excess of 20 percent for the back disability from April 27, 2015. 6. Entitlement to a disability rating in excess of 10 percent for radiculopathy, right lower extremity. 7. Entitlement to a disability rating in excess of 10 percent for radiculopathy, left lower extremity. REMANDED Entitlement to service connection for an acquired psychiatric disability, claimed as PTSD is remanded. Entitlement to service connection for CFS is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a disability rating in excess of 10 percent for the back disability prior to April 27, 2015, is remanded. Entitlement to a disability rating in excess of 20 percent for the back disability from April 27, 2015, is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy, right lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy, left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1980 to March 2000. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Subsequently, in a December 2018 rating decision, the evaluation of the back disability was increased to 20 percent effective April 27, 2015, and service connection was granted for radiculopathy, left and right lower extremities with separate evaluations of 10 percent disabling. This did not satisfy the Veteran's appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran and his spouse testified before the undersigned during a March 2021 videoconference hearing; a copy of the transcript is of record. During this hearing, the Board took testimony and jurisdiction over the issues regarding entitlement to increased ratings for the service-connected radiculopathy, left and right lower extremities. See Parker v. Brown, Vet. App. 116 (1994). The Board is of the opinion that additional development is required before the Veteran's claims on appeal are decided. In regards to the claim for an acquired psychiatric disability claimed as PTSD, the Board notes that the Veteran filed his initial service connection claim for PTSD. However, in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the Board has re-characterized the pertinent issue on appeal as entitlement to service connection for an acquired psychiatric disorder claimed as PTSD. To this point, VA treatment records show diagnoses of adjustment disorder with depressed mood and major depressive disorder. Therefore, expanding this issue will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The Veteran contends that service connection is warranted for an acquired psychiatric disability to include as due to an assault that occurred during service in which he was kicked in the back, arm, and head. Service treatment records show an undated Report of Medical History in which the Veteran noted that he had attempted suicide and had depression or excessive worry. Records also show that he reported being kicked in the back, arm, and head in May 1981. The Veteran was afforded a VA-contracted examination in December 2015 in which the examiner diagnosed major depressive disorder. The examiner stated that based upon the current symptoms, medical record, and natural history of the illness, it was less likely than not that the Veteran's psychiatric disorder was incurred in service. The examiner stated that the Veteran's medical records did not reflect symptom onset in service. However, the Board notes that the May 1981 assault was not discussed during this examination. As such, the Board finds that the Veteran should be afforded a VA examination on remand that addresses the aforenoted complaints in service and addresses the etiology of the diagnosed adjustment disorder with depressed mood. In regards to the claims for CFS and sleep apnea, the Veteran asserts that service connection is warranted for these disabilities as they had onset in service or are related to his exposure to environmental hazards in Southwest Asia. The Veteran's DD Form 214 shows that he was a Chemical Operations Specialist and had service in Southwest Asia. Service treatment records in December 1999 also show that the Veteran reported frequent trouble sleeping and easy fatigability; in January 2000, he reported stress-related insomnia and fatigue. VA and private treatment records show diagnoses of sleep apnea and insomnia. The Veteran has not been afforded VA examinations to address the etiology of his claimed CFS and sleep apnea. The Board finds that the Veteran should be afforded VA examinations regarding the nature and etiology of these claimed conditions. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In regards to the claims for increased ratings for the service-connected back disability; radiculopathy, right lower extremity; and radiculopathy, left lower extremity, the Veteran was most recently afforded a VA-contracted examination in November 2018. In testimony before the undersigned, it was argued that these disabilities had increased in severity with symptoms to include increased pain, numbness, and difficulty walking. As such, the Board finds that remand is warranted to assess the severity of these service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. 2. The Veteran should be afforded a VA examination by a psychologist or psychiatrist. Access to the Veteran's electronic claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should address the following: a) Indicated whether the Veteran has a diagnosis of PTSD that conforms to the DSM-V criteria. b) If PTSD is diagnosed, the examiner should specifically determine whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's PTSD is related to his military service. If a diagnosis of PTSD is deemed appropriate, the examiner must explain how the diagnostic criteria of the DSM-V are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and the stressor(s). The examiner must state whether the claimed stressor(s) is adequate to support a diagnosis of PTSD. If the examiner determines that the Veteran has PTSD related to the claimed in-service stress of an in-service personal assault, fear of hostile action during active service, the examiner should review the claims file and render an opinion as to whether there is evidence which would be consistent with the alleged trauma, and offer an opinion as to the clinical significance, if any, or such evidenced changes. c) The examiner should opine whether it is at least as likely as not (a 50 percent or greater possibility) that any acquired psychiatric disability diagnosed during the pendency of this appeal to include adjustment disorder with depressed mood and major depressive disorder had their onset in service or are otherwise etiologically related to service. The examiner should address the aforenoted service treatment records showing reports that the Veteran had attempted suicide, had depression or excessive worry, and was assaulted in May 1981. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. 3. Schedule the Veteran for VA examination(s) to determine the nature and etiology of his claimed CFS and sleep apnea. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: Whether it is at least as likely as not (50 percent or better probability) that any CFS and sleep apnea diagnosed during the pendency of this claim had their onset in service, are otherwise related to service (to specifically include as due to the exposure to environmental hazards in the Gulf War in his duties as a Chemical Operations Specialist). The examiner should address the aforenoted service treatment records in December 1999 that showed reports of frequent trouble sleeping and easy fatigability as well as stress-related insomnia and fatigue in January 2000. A full and complete rationale for all opinions expressed must be provided. Then, arrange for the Veteran to be afforded VA examination(s) in order to ascertain the current severity of the service-connected lumbar spine facet arthropathy; radiculopathy, right lower extremity; and radiculopathy, left lower extremity. Access to the electronic claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. The RO should ensure that the examiner provides all information required for rating purposes, to include a discussion of the functional and occupational impact of the disabilities. A detailed rationale must be provided for any opinion expressed. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.