Citation Nr: 21071148 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-00 213A DATE: November 29, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for an acquired psychiatric disorder, including major depressive disorder, post-traumatic stress disorder (PTSD), psychosis, is remanded. Entitlement to service connection for a respiratory condition is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1973 to July 1973, and he received the National Defense Service Medal. In March 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The appeal was previously before the Board in March 2021 and the Board remanded the claims for new nexus opinions. Service Connection for Sleep Apnea The Veteran underwent a VA examination in May 2021. See May 2021 VA Examination, pp. 1-10. The May 2021 examiner offered a negative opinion and explained that sleep apnea is caused by repetitive collapse of the upper airway during sleep and there is no in-service evidence of this process. See May 2021 VA Examination, p. 97. The examiner further concurred with a March 2012 opinion noting that the Veteran's in-service complaints of drowsiness and insomnia were like due to his personality disorder and substance use. See id.; March 2012 VA Examination, p. 5. Neither the May 2021 nor March 2012 opinions consider the Veteran's reports of loud snoring during his service. See March 2020 Hearing Transcript, p. 21. Accordingly, the claim is remanded for an opinion that considers the full scope of the Veteran's in-service symptoms. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Service Connection for a Back Condition with Bilateral Lower Extremity Radiculopathy In May 2021, the Veteran also underwent a VA examination for his back condition. See May 2021 VA Examination, pp. 1-25. The examiner offered a negative nexus opinion and explained that the Veteran's back condition is likely secondary to the aging process and a post-service motor vehicle accident. See May 2021 VA Examination, p. 70. However, the examiner does not consider the Veteran's reports of in-service back strain from heavy lifting and frequently going up and down hatches. See March 2020 Hearing Transcript, pp. 13-14. As such, the Board finds that a new opinion is needed that considers the Veteran's report of in-service symptoms. See Stefl, 21 Vet. App. at 124. Service Connection for an Acquired Psychiatric Disorder The Veteran underwent a VA examination in June 2021 in connection with his service connection claim for an acquired psychiatric disorder. See June 2021 VA Examination, pp. 1-24. The examiner identified three applicable diagnoses for the Veteran's disability: unspecified schizophrenia spectrum and other psychotic disorder, polysubstance dependence, and unspecified personality disorder. The examiner opined that none of the diagnoses are related to the Veteran's active duty service. The rationale focuses largely on the Veteran's personality disorder which is a developmental defect for VA purposes and is excluded from the definition of disease or injury under VA law. See 38 C.F.R. § 3.303(c); see also Winn v. Brown, 8 Vet. App. 510 (1996). However, service connection may still be granted if there is additional disability that is superimposed on the Veteran's personality disorder. See VAOPGCPREC 82-90 (July 18, 1990). The May 2021 opinion does not address whether the Veteran incurred a superimposed disability on his personality disorder, nor does it provide a rationale for the negative nexus opinion on the Veteran's unspecified schizophrenia spectrum and other psychotic disorder. Accordingly, the Board finds that a new opinion is needed. Additionally, at the March 2020 hearing, the Veteran testified that he sought treatment for an acquired psychiatric disability immediately after service. See March 2020 Hearing Transcript, p. 9. There are no treatment records in the claims file from the period immediately after the Veteran's service nor have there been any efforts to identify and obtain such files. Accordingly, on remand, the agency of original jurisdiction (AOJ) should invite the Veteran to provide the requisite information to identify and obtain any outstanding relevant treatment records. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). Service Connection for a Respiratory Condition In May 2021, the Veteran underwent a VA examination for respiratory conditions. See May 2021 VA Examination, pp. 36-50. The examiner offered a negative nexus opinion based on the absence of a confirmed diagnosis of a specific respiratory disease and normal pulmonary function test and spirometry results. The examiner noted that exercise capacity testing had not been performed and also did not address the Veteran's reported history of asthma and shortness of breath. Given the Veteran's history of experiencing shortness of breath and his longstanding use of an albuterol inhaler, the Board finds that a new opinion is needed that fully considers the Veteran's history. Id. at p. 40; March 2020 Hearing Transcript, pp. 18-19. The matters are REMANDED for the following action: 1. Provide the Veteran with the appropriate release forms to identify and obtain all outstanding mental health treatment records, including from non-VA providers as well as VA-contracted providers. The AOJ is specifically directed to identify and obtain any treatment records from the time immediately following the Veteran's separation. All efforts to obtain such records should be documented. 2. Obtain a VA opinion that addresses the nature and etiology of the Veteran's sleep apnea. If deemed necessary by the examiner, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran's documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea onset during, was aggravated by, or is otherwise etiologically related to the Veteran's active duty service. In providing this opinion, the examiner must address the Veteran's reports of having difficulty sleeping, experiencing excessive tiredness, and experiencing loud snoring during service. See March 2020 Hearing Transcript, pp. 20-21. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. Obtain a VA opinion that addresses the nature and etiology of the Veteran's back condition and bilateral lower extremity radiculopathy. If deemed necessary by the examiner, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran's documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current back condition was incurred in, aggravated by, or is otherwise etiologically related to the Veteran's active duty service. In providing this opinion, the examiner must address the Veteran's reports of having in-service back strain from heavy lifting and frequently going up and down hatches. See March 2020 Hearing Transcript, pp. 13-14. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. Obtain a VA opinion that addresses the nature and etiology of the Veteran's acquired psychiatric disability. If deemed necessary by the examiner, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran's documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's personality disorder suffered a superimposed injury, to include the development of polysubstance dependence, during his active duty service? (b) Is it at least as likely as not that the Veteran's unspecified schizophrenia spectrum and other psychotic disorder was incurred in, aggravated by, or is otherwise etiologically related to the Veteran's active duty service? In providing this opinion, the examiner must address the Veteran's in-service complaints of hallucinations, lack of appetite, difficulty sleeping, anger and anxiety and the reports that such symptoms continued after service. See December 2014 STR, pp. 1-2; March 2020 Hearing Transcript, pp. 3-11. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 5. Obtain a VA opinion that addresses the nature and etiology of the Veteran's respiratory condition. If deemed necessary by the examiner, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran's documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address the following: (a) Identify all current diagnoses that pertain to the Veteran's respiratory complaints. Specifically, the examiner is asked to consider applicable diagnoses for the Veteran's reports of wheezing and shortness of breath as well as his longstanding use of an albuterol inhaler. The examiner should also address whether the Veteran's reported history of a past diagnosis of asthma and whether such condition has resolved. (Continued on the next page) (b) For any diagnosis identified, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran's active duty service? In providing this opinion, the examiner must consider the Veteran's reports of experiencing shortness of breath in service. See March 2020 Hearing Transcript, p. 20. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W.V. Walker, 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.