Citation Nr: 21071736 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-24 697 DATE: December 1, 2021 ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for sleep apnea, to include as due to an acquired psychiatric disorder. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression is remanded. Entitlement to service connection for sleep apnea, to include as due to an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from August 1989 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2014 and October 2015 rating decisions, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran's claim for entitlement to service connection for post-traumatic stress disorder (PTSD) was denied in a rating decision from November 2014. He filed a timely Notice of Disagreement (NOD) in September 2015, and he was issued a statement of the case (SOC) in April 2017. The Veteran, through his Attorney, then appealed the claim to the Board by submitting a VA Form 9 the following month. In the Form 9, the Veteran requested a Board hearing before a Veterans Law Judge. The Veteran's claim for entitlement to service connection for sleep apnea was denied in a rating decision from October 2015. He filed a timely NOD in August 2016, and he was issued an SOC in July 2017. The Veteran, again through his Attorney, filed a timely VA Form 9, in which a Board hearing was again requested. The Veteran's claims were eventually certified to the Board in June 2017 and August 2017 respectively and they were subsequently merged into the same appeals stream. The Veteran then appeared before the undersigned Veterans Law Judge in a Board hearing in August 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. The Board notes that when a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has re-characterized the previous issues of entitlement to service connection for PTSD, as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression is remanded. The Veteran has claimed that his acquired psychiatric disorder is due to his active-duty service. To establish entitlement to service connection for PTSD, a Veteran must establish (1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. 38 C.F.R. § 3.304(f). To begin, the Veteran's claims file indicates that he has a current diagnosis of PTSD. The Veteran was seen in June 2017 for a VAMC mental health evaluation. That evaluation confirmed the diagnosis, and the Veteran was scheduled to have regular counseling sessions by VAMC social workers. Turning to the second criteria, the Veteran was given a hearing before the undersigned in August 2021. During the hearing, the Veteran testified that he served in Special Operations during his time on active duty in the Marines, and that he was stationed in Guantanamo Bay, Cuba, and in Haiti. The Veteran testified that there are two stressors that may have caused his current diagnosis of PTSD. The Veteran first testified that he was assigned to a Special Operations Training Group while stationed along the Cuban/Haitian border. During that time, he was given approximately four days of "mine field duty," which he described as border patrol duty along an active mine field. He testified that during this duty he "tripped on a rock or something," during which a Cuban soldier counterpart had "his weapon drawn on me," and stayed that way "for at least an hour and a half," during which he feared that he would be killed. The Veteran also testified to a second stressor, whereby he had been the first to discover two fellow soldiers "Gunnery Sergeant Wendt and Captain McMannis" that had committed suicide. The Veteran then indicated that upon his return from Cuba and Haiti, he started noticing symptoms of PTSD, which included his drinking heavily, and feelings of anger and violence. The Board notes these stressors are consistent with his previous statements from April 2014. The Veteran's former spouse, S.H., submitted a statement in April 2014, indicating that the Veteran's mood changed when he returned from active duty. S.H. indicated that he had "become very mad," and that he started drinking heavily. She stated that she was frequently scared for her life, as the Veteran became paranoid and that his sleep was frequently restless. The Veteran's claims file also contains a buddy statement from R.B. submitted in April 2014. R.B. indicated that he served alongside the Veteran and that they "became very close in a short amount of time." R.B. noted that the Veteran was "not the same guy" when he returned from the "Haiti/Cuba (Special Operations Training Group JTF-129)." R.B. discussed a time when the Veteran was caught talking to himself in the laundry room, and that he became angry when questioned who he was talking to. R.B. also noted that the Veteran told him of the stressor occasion where his "Cuban Shadow pointed his Ak-47 at him" while the Veteran was on border patrol. The Veteran is competent to report the symptoms he experiences, such as those associated with his acquired psychiatric disorder. S.H. and R.B. are also competent to report as to that which they observed, and what the Veteran had told them. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). To summarize the above, the Veteran has claimed two in-service stressors. First, that while stationed in Haiti along the Cuban/Haitian border, the Veteran was given border patrol duty along a mine field, when he tripped and his "Cuban Shadow" on the other side of the border threatened and attacked him, whereby he feared for his life. Second, the Veteran testified that he was the first to discover the bodies of two fellow soldiers who had committed suicide. Despite these detailed reports, the RO wrote in October 2014 that they did not have enough information to corroborate the stressors. The RO also indicated that there was insufficient information to send those events as described to the Joint Services Records Research Center (JSRRC). As such, the Veteran's in-service stressors were not able to be corroborated. Pursuant to VA's Duty to Assist, the Board must seek corroboration of the stressors from the JSRRC where a Veteran alleges a stressor that can be documented and provides the location where the incident took place, the approximate date of the incident, and the unit of assignment at the time of the incident occurred. Considering that the Veteran did provide the requisite specificity for a corroboration request to be made, and those details have been emphasized by his August 2021 hearing testimony, the Board finds that additional development is necessary by the RO to attempt to corroborate the claimed in-service stressors. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Following that development, the Board also notes that the Veteran has not been given the benefit of a VA examination for his acquired psychiatric disorder. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. Thus, pursuant to the Board's Duty to Assist, the Veteran's claim must be forwarded to the JSRRC, which must attempt to confirm the Veteran's claimed in-service stressors. The attempt to confirm and any response received must be documented. Following the JSRRC inquiry, the Veteran must be scheduled for a VA examination, whereby his diagnoses can be confirmed, and an etiological opinion may be rendered in relation to his active-duty service. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. 2. Entitlement to service connection for sleep apnea, to include as due to an acquired psychiatric disorder is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran has claimed that his sleep apnea is due to his acquired psychiatric disorder. The Board notes that the Veteran is not currently service-connected for the acquired psychiatric disorder, which is being remanded herein. Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). During the Veteran's Board hearing in August 2021, the Veteran testified that he experiences nightmares, sleep disturbances and restless sleep. The Veteran noted that he had been fitted for a CPAP, and that he was given a sleep study in the past. During the hearing, the Veteran's Attorney argued that his sleep apnea may be proximately due to his psychiatric disorder. The Veteran is competent to report the symptoms that he experiences, including his difficulty sleeping. See Jandreau, Id. The Veteran's claims file indicates that he has "had an incomplete sleep study," in the past. See January 2014 VAMC report. A January 2015 VAMC report further indicated that the Veteran uses a CPAP machine, but a completed sleep study has not been performed. As such, the Veteran's current diagnosis of sleep apnea has not been confirmed. Despite that, there is evidence of a current diagnosis of sleep apnea, given VAMC reports of his use of a CPAP machine, and his competent testimony regarding restless sleep. The Veteran has also not been given a VA examination, and no etiological opinion has been rendered regarding his claim. As such, the Veteran's claim must be remanded for additional development. See McLendon, Id; See also Schafrath, Id. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. The RO must make a formal finding as to whether the Veteran's claimed in-service stressors can be confirmed, regarding his claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder and depression. The RO should contact the Joint Services Records Research Center (JSRRC), and any other appropriate source and request that they determine if the Veteran's claimed in-service event can be confirmed. As a reminder, the Veteran has provided competent testimony that (1) while stationed along the Haitian/Cuban border as part of a Special Operation Training Group, he was given border patrol duty in a mine field, when he tripped and was attacked and/or threatened by his "Cuban Shadow," who held him at gunpoint; and (2) that he was the first to discover the bodies of Gunnery Sergeant Wendt and Captain McMannis, two fellow soldiers who had committed suicide. Any response received must be documented in the record. 3. After, and only after completion of Steps 1 and 2, forward the Veteran's claims file to a VA psychiatrist for a VA mental health evaluation (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) to address his claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. A copy of this remand must be made available to the examiner for review in conjunction with this examination. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: (a.) Confirm any/all current diagnoses of an acquired psychiatric disorder, to include PTSD and/or depression, present at any point during the period on appeal. (b.) Pertaining any diagnosis of PTSD, state whether the claimed stressors are adequate to support a diagnosis of PTSD and whether it is at least as likely as not (50 percent or more probability) that PTSD is related to service, to include any stressors. (c.) For each acquired psychiatric disorder other than PTSD present at any point during the period on appeal, is it at least as likely as not (50 percent or more probability) that the diagnosed psychiatric disability other than PTSD, to include depression, was incurred in or is otherwise related to the Veteran's service, to include as due to his claimed stressors? In rendering this opinion, the examiner's attention is drawn to the formal findings made by the RO regarding the claimed in-service events. The examiner is also to consider the competent testimony provided by the Veteran in August 2021, as well as the buddy statements provided by S.H. and R.B., submitted in April 2014. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Schedule the Veteran for VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's claimed sleep apnea. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should provide responses to the following questions: (a.) Confirm whether or not the Veteran has a current disability of sleep apnea. A sleep study should be scheduled if deemed necessary. (b.) Then, for any confirmed diagnosis provide an opinion as to whether the Veteran's sleep apnea disability is at least as likely (50 percent or more probability) as not related to an in-service injury, event, or disease. (c.) If not, whether any confirmed sleep apnea disability is at least as likely as not (1) proximately due to his acquired psychiatric disorder, or (2) aggravated beyond its natural progression by his acquired psychiatric disorder. The examiner is reminded that the Veteran provided competent testimony in August 2021 that he experiences nightmares, sleep disturbances and restless sleep, which he believes may be due to his psychiatric disorder. The Veteran also testified that he uses a CPAP machine. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. A separate, thorough rationale shall be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 5. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Attorney should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.