Citation Nr: 21069504 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-11 325 DATE: November 18, 2021 REMANDED 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, and depressive disorder is remanded. 2. Entitlement to service connection for obstructive sleep apnea is remanded. 3. Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from October 1986 to February 1987 and from February 2003 to January 2004, including service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo Puerto Rico, the agency of original jurisdiction (AOJ). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the file. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder The Veteran submitted a statement in support of his claim for PTSD in February 2016. He stated that he arrived in Kuwait on April 3, 2003, and was attached to a transportation company, Infantry Division. The mission was to drive convoys from the port of Kuwait to various camps. At the end of April, he was waiting on port for his truck to be loaded when they heard a loud horn and shots fired. A small fishing boat was approaching the USS Shughart and it engaged the small boat with a 50 caliber gun. Through binoculars all he could see were bodies turned to pieces. A psychiatric evaluation dated December 2014 indicates that the Veteran was admitted due to recurrent suicidal ideas and persistent death wishes. The morning of admission he felt an urge to crash his car against a tree. He reported feeling irritable and getting upset easily. He stated he "was not sleeping well and had nightmares." He reported feeling depressed since coming back from deployment. The Veteran was afforded a VA examination for PTSD in April 2016. The examiner noted that the Veteran's service treatment records are silent for complaints, diagnosis or treatment of a mental disorder. The Veteran first sought mental health treatment at a VA psychiatric center on May 18, 2013. The Veteran was evaluated by the VA PTSD clinic team on October 29, 2014, and the results were negative for PTSD and positive for depressive disorder. He reported three stressors. First, he witnessed a small boat approaching the harbor with two persons in it that was shot by a large ship, killing the two persons. He stated he has a sense of fear, of not knowing what is going to happen. He reported stress thinking that they killed two persons and don't know who they were or what they were doing, possibly fishermen. He expressed guilt and stated they may not have been enemies. Second, he reported frequent air attack alarms, requiring him to put on a gas mask. He stated that he has the noise of the alarm in his head during the day and at night. He described it as "more like a thought, emotional, not a sound." Third, he was in a humvee when there was an accident and they turned over. The Veteran described symptoms of depression, accompanied by lack of motivation. He reported difficulties with sleep, and that without medication, he would not sleep. He stated that his brain does not shut down. He described thoughts that his life is worthless. He reported two warnings at work, one related to an incident with a supervisor and the second due to lack of professionalism with a client. He described a sense of losing control, raising his voice and not knowing what he was saying. The examiner found that the Veteran's symptoms do not meet the diagnostic criteria for PTSD and the Veteran has another mental disorder diagnosis, depressive disorder. The examiner opined that the Veteran's depressive disorder is also not related to service, noting that his depressive symptoms began in 2011. In April 2016, the Veteran was afforded a VA examination for unspecified depressive disorder. The examiner found that the Veteran's depressive disorder causes occupational and social impairment due to mild or transient symptoms which decrease his work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran stated that he was suspended from work due to effects of his medication, which slow him down. The examiner reviewed the Veteran's psychiatric treatment history as follows. He began psychiatric evaluation and treatment at a VA psychiatric intervention center on May 18, 2013. He reported being irritable to the point that he had problems at work. He also reported anxiety, feeling on the edge, easy fatigability, muscle tension, loss of concentration and occasional sleep problems. He reported feeling depressed, loss of interest in activities, and occasional "death thoughts" but denied suicidal ideation. He reported a history of admissions to a psychiatric ward and an attempt to take his own life. A May 2014 psychiatric evaluation noted symptoms of anxiety, depression, and anger outbursts that required treatment. The provider noted that his symptoms were worsening and for months he was having nightmares about combat events in which Iraqi or Kuwaiti civilians and military buddies are killed. He reported insomnia due to these recurrent nightmares and increasing difficulties with his family, friends, and employment. The Veteran was admitted to a VA psychiatric acute inpatient care unit in December 2014. He reported, "I am feeling sad, anxious and wishing to be dead." He presented with the following symptoms: feeling sad, depressed, irritable with difficulties in handling his anger, decreased energy, and poor sleep. He reported self-harm ideation with plan of taking an overdose. He described the nightmares and war related memories bothered him. He was diagnosed with PTSD, anxiolytic withdrawal, unspecified depressive disorder, and generalized anxiety disorder. The Veteran filed a statement that was received on June 3, 2016. He noted his 23 years of service in the reserves and one year in the Gulf War theatre. He stated that he has PTSD. He stated that "I saw with my eyes when a cargo ship at the bay in [Kuwait] opened fire with a 50 cal. machine gun to a fishing boat with two men [on board] and saw them being shred to pieces. He stated he dreams of it often, every other day, and awakens in the middle of the night with a huge remorse in his mind because "a bunch of us killed 2 or 3 guys in a fishing boat." He stated that to this day, he doesn't know if they were enemies or not. In August 2016 the Veteran called a VAMC reporting that he was severely depressed and had suicidal thoughts. In subsequent contacts, he reported he has a sleep disorder and sleeps four hours per night, little appetite, tiredness, lack of interest, and lack of focus and concentration. He stated that is job performance has been affected by his emotional problems. He reported arguments at work and at home with his coworkers and brothers and that he had a fist fight with neighbor. The Veteran then testified at a hearing in August 2021 that he was in Camp New York in Kuwait from 2003 to 2004. There were north facing berms on the base to protect against fire from hostile Iraqis. There was incoming fire and mortar; when alarms and signals sounded, they grabbed their masks and weapon and ran to a predesignated bunker. The bunker was a tractor trailer with sandbags on top, referred to as a typical combat semi-permanent bunker. They were very cramped and very hot. There was no light and they would usually stand around for two to three hours for the "all clear" signal. The Veteran stated that caused him a lot of stress and to this day he is reminded of that experience. He stated that he served in Iraq but did not go to the front lines. They entered Iraq and made a fire base with the needed supplies that would be moved to the front. They were under constant small arms and machine gun fire while "setting up the fire base." He did not receive treatment for any mental disorder during service. He testified that he didn't know that there was anything wrong at that time until he realized much later that it had gotten out of hand. It was noted that he left active service in 2004. He started to notice that he had a problem when he started to lose control, when he started to become very angry, and when he started getting desperate at work and at home. These symptoms worsened over time. He indicated that he sought treatment in 2009 or 2010. He stated that he was diagnosed with PTSD by a VA psychiatrist. The Board finds that the April 2016 VA medical opinion is inadequate. The examiner reviewed the file and determined that the Veteran's symptoms cause occupational and social impairment but he offered little to no rationale to support his opinion that the Veteran's depressive disorder is not related to his military service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner does not address the Veteran's lay statements, or the circumstances of his service, in relation to his depressive disorder diagnosis. Nor does the examiner address the circumstances of the Veteran's service or his claimed stressors in relation to his depressive disorder diagnosis. 2. Entitlement to service connection for obstructive sleep apnea The Veteran was diagnosed with obstructive sleep apnea pursuant to a sleep study in June 2015 and was prescribed and uses a CPAP machine. The Veteran was afforded a VA examination in May 2016. The examiner noted that the Veteran experiences persistent daytime hypersomnolence. The examiner noted medications prescribed for the Veteran's sleep disorder. The examiner opined that after review of the file, the medical literature, and interview with the Veteran, it is less likely than not that the Veteran's obstructive sleep apnea is related to environmental exposure during military service. The rationale was that this is a condition with a clear and specific etiology and diagnosis. The medical literature does not support a direct etiologic relation between past exposure to dust, fumes, smoke, particulate matter and the development of sleep apnea. Service treatment records are silent regarding any diagnosis or symptoms of sleep apnea. There is no evidence of manifestation or diagnosis within one year of separation. In June 2016, the Veteran submitted a statement. He stated that he has obstructive sleep apnea which he attributed to inhaling fumes from burning latrine material with diesel, or sand that was "so thin I had to use vaseline so I wouldn't bleed all the time." The Veteran then testified at a hearing in August 2021. He stated that during service he was deployed to camp New York in Kuwait where he had additional duty of setting fire to latrine waste, using diesel fuel. He testified that his snoring and respiratory problems worsened after he was deployed. He stated that he was diagnosed and began treatment for sleep apnea approximately six or seven years ago. He reported that he had blockage of his right nostril and started noticing significant snoring. He had trouble sleeping, he could fall asleep but didn't rest because his mind was constantly going and he would wake up numerous times each evening. He was prescribed and uses a CPAP machine. In August 2021 the Veteran's ex-wife submitted a statement. She indicated that they were married from 1991 to 2011. She stated that before the Veteran was deployed, he "slept well the complete night," did not snore or have dyspnea, and awakened in the morning rested. After her returned from being deployed, she stated that he started snoring gradually more loudly and had painful cluster headaches, which a VA neurological department treated. She stated he never had these symptoms prior to deployment. She stated that in approximately 2005, his snoring was getting louder and his dyspnea while sleeping started getting "more aggressive." She stated that they did not know that was a serious condition. His VA medical provider sent him for a test for sleep apnea which was positive. Since that diagnosis, he takes sleeping medication and uses a CPAP machine every night. The Board finds that a remand is necessary because the May 2016 examination and opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303 (20007). The probative value of a medical opinion primarily comes from the physician's reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner asserted that obstructive sleep apnea is a condition with a clear and specific etiology and diagnosis, however the examiner did not explain the nature of such etiology, much less in the context of the Veteran's specific symptoms and diagnosis. Further, the examiner did not address any etiological circumstance beyond environmental exposure. Nor did the examiner adequately address the Veteran's lay statements. In addition, during a May 2016 VA examination for PTSD, the examiner noted that the Veteran's obstructive sleep apnea is a symptom that is attributable to his mental disorders, therefore on remand, secondary service connection must be addressed in the event that service connection is granted for an acquired psychiatric disorder. 3. Entitlement to service connection for left ear hearing loss is remanded. The Veteran asserts that he has a current hearing loss that is the result of in-service exposure to hazardous noise. The Veteran's DD-214 shows an MOS of motor transport operator which has a moderate probability for hazardous noise exposure. The Veteran was afforded a VA examination for hearing loss and tinnitus in May 2016. His audiological testing results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 15 20 13.75 LEFT 20 15 20 20 18.75 His speech discrimination score (Maryland CNC word list) was right ear, 100 percent; left ear 100 percent. The Veteran reported a decreased ability to understand conversations and that he needs to increase the volume of radio and television. He also reported bilateral tinnitus. The examiner diagnosed tinnitus and opined that such condition is at least as likely as not due to or caused by noise exposure during military service. The rationale as follows: "It is well known that prolonged exposure to high intensity noise levels like the military type can cause damage to auditory structures resulting in hearing loss and/or tinnitus. The Veteran was exposed to military noise during his active service." The examiner stated that no hearing loss was found; the audiological examination showed bilateral hearing within normal limits. In the absence of any hearing loss, no medical opinion or rationale was rendered. In the May 2016 rating decision, the RO granted service connection for tinnitus. The RO denied service connection for left ear hearing loss. In June 2016, the Veteran filed a statement asserting that he has hearing loss in his left ear because when someone speaks to him from his left side, most of the time he has to ask them to repeat what they said. He stated that firing an M16 or hearing 81 mm mortars fire during service caused damage to his ears. The Veteran also testified at a hearing in August 2021. He testified that he was exposed to loud noises driving a Humvee for a mortar platoon. The Veteran's representative noted that the May 2016 examiner's opinion stating that his tinnitus is at least as likely as not due to the hazardous noise during service. It was noted that the RO denied service connection for left ear hearing loss because the Veteran did not have sufficient hearing loss to meet the VA standards for service connection under 38 C.F.R. § 3.385. The Veteran testified that his hearing has worsened since his May 2016 hearing examination. The Board notes that the audiometric testing results during the 2016 VA examination does not meet the criteria for establishing hearing loss that is capable of being service connected. The Board finds that another examination is necessary as the most recent audiological testing is from 2016 and the Veteran testified that his hearing has worsened since then. The Board finds that a remand is required in order to obtain an audiogram to assess the current severity of the Veteran's left ear hearing loss. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any acquired psychiatric disorder. The examiner should identify any acquired psychiatric disorders, to include PTSD, depressive disorder, and an anxiety disorder. The examiner should then provide an opinion whether it is at least as likely as not (50 percent or better probability) that any identified acquired psychiatric disorder is related to active service. 2. Schedule the Veteran for an examination to determine the nature and etiology of his sleep apnea. The examiner should provide an opinion whether it is at least as likely as not (50 percent or better probability) that the Veteran's obstructive sleep apnea is related to active service. 3. Schedule the Veteran for an audiological examination to determine the nature and etiology of his left ear hearing loss. The examiner should determine whether the Veteran has a current left ear hearing disability under VA regulations and if so; whether it is at least as likely as not (50 percent or better probability) that the Veteran's hearing loss disability is related to active service. The examiner must address the Veteran's MOS, and the Veteran's testimony and lay statements. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.