Citation Nr: 21073004 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-35 977 DATE: December 7, 2021 ORDER Entitlement to a rating in excess of 30 percent for irritable bowel syndrome is dismissed. Entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed. The petition to reopen a claim for service connection for posttraumatic stress disorder (PTSD) is granted. The petition to reopen a claim for service connection for depression is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. At a July 2021 hearing, prior to a Board decision on the matter, the Veteran withdrew his appeal regarding irritable bowel syndrome and GERD before the Board. 2. In an unappealed October 2012 rating decision, the Regional Office denied the Veteran's claim for entitlement to service connection for depression and PTSD; no new and material evidence was received within one year of the notification of that decision. 3. Subsequent to the October 2012 rating decision, evidence was associated with the claims file that is neither cumulative nor redundant of the evidence of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for these disorders. 4. The evidence is at least in equipoise that the Veteran's obstructive sleep apnea was incurred in service. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim for entitlement to a rating in excess of 30 percent for irritable bowel syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of the claim for entitlement to service connection for GERD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The October 2012 rating decision that denied service connection for PTSD and depression is final. 38 U.S.C. §§ 7104(b), 7252. 4. As evidence received since the October 2012 final rating decision is new and material, the criteria for reopening the previously denied claims for PTSD and depression have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to March 1992. He served honorably in the U.S. Army, including service in Saudi Arabia during the Persian Gulf War. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in July 2021. A transcript of the hearing is of record. In August and September 2021, the Veteran submitted additional medical evidence, which will be discussed in greater detail below. 1. Entitlement to a rating in excess of 30 percent for irritable bowel syndrome is dismissed. 2. Entitlement to service connection for GERD is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, after the appeal was certified to the Board, in testimony at the July 2021 hearing, the Veteran requested to withdraw the issues of irritable bowel syndrome and GERD. The Board finds that the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. At the hearing, the Veteran confirmed that he had the opportunity to discuss the withdrawal with his representative and that he understood the consequences of the withdrawal, including that he could refile the claim should he choose to do so. Given these circumstances, and particularly because the Veteran's withdrawal was done in the presence of his representative, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As the transcript of the hearing has been reduced to writing, the withdrawal during the hearing constitutes a written withdrawal. See Tomlin v. Brown, 5 Vet. App. 355 (1993) (a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a written notice of disagreement within the meaning of 38 U.S.C. § 7105). Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review the issues, and they are dismissed. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 3. The petition to reopen a claim for service connection for PTSD is granted. 4. The petition to reopen a claim for service connection for depression is granted. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Agency of Original Jurisdiction (AOJ) denied service connection for PTSD and depression in October 2012 and notified the Veteran of its decision and his right to appeal within one year of the October 2012 notice. No appeal was filed and no additional evidence was received within one year of the October 2012 notice. Accordingly, the October 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In a September 2021 opinion, a private psychiatrist concluded that in service stressors were related to his PTSD (per history) and that his depression is secondary to his PTSD. Accordingly, the Board finds that the additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claims of service connection for PTSD and depression. See 38 C.F.R. § 3.156(a). As new and material evidence has been presented, the claims are reopened. The Board notes that the Veteran's appeal with respect to the issue of service connection for obstructive sleep apnea has been characterized and developed as a claim to reopen a prior final denial; here, the AOJ denied his petition, determining that new and material evidence had not been submitted. 5. Entitlement to service connection for obstructive sleep apnea is granted. The Veteran contends generally that service connection is warranted for obstructive sleep apnea. The Board agrees. In an October 2001 mental health note, the Veteran reported decreased energy level since 1993. He also endorsed feelings of fatigue. In a November 2001 mental health consultation relatively AND consistent, he reported difficulties with fatigue and decreased energy. In a June 2009 mental health note, the Veteran reported that he felt like he had sleep apnea and requested a sleep apnea consultation. Following a sleep study, in November 2009 he was diagnosed with mild sleep apnea. In a June 2009 private psychological evaluation, the Veteran reported that he had worked for the U.S. Postal Service from 1993 to 1998 but that he got bored with the job and started feeling tired and irritable. He reported that he would stay to himself and was frequently absent. In a September 2009 VA examination report for gastrointestinal disorder, headaches, fatigue, muscle twitching, and allergic rhinitis, the Veteran reported problems with fatigue which began in 1992 after returning from the Gulf. He reported feeling sluggish and tired and daily and sometimes waking up in the morning with fatigue, especially if he had been unable to sleep at night. He reported problems with insomnia and depression. The examiner concluded that his fatigue is likely related to his depression and noted that his service treatment records were negative for documentation of chronic fatigue or depression. In an October 2009 VA examination report for occipital headaches and muscle twitches, he reported feeling fatigued since 1990 and seeking treatment at some point in 1990. In a May 2010 VA note, the Veteran's primary care physician noted that his ongoing headaches and fatigue were possibly related to sleep apnea. In a November 2010 mental health initial evaluation note addendum, the psychologist noted that his sleep apnea and irritable bowel might be contributing to his fatigue, irritability, and discomfort in public places. In a June 2011 statement, the Veteran relayed having fatigue in service. In a June 2012 VA PTSD examination report, the Veteran reported current symptoms of fatigue, irritability, sadness, hopelessness, withdrawal, lack of drive, and trouble sleeping. He reported that he first started having symptoms of depression in 1990. The examiner noted that there were no in-service records supporting this. In August 2012 a rating decision denied a claim for service connection for sleep apnea based on findings that the disorder was not shown in service and there was no current diagnosis. The Veteran was notified of this decision later that month. If new and material evidence is received prior to the expiration of the appeal period (in this case, prior to August 2013), the claim remains pending. 38 C.F.R. § 3.156(b). Here, in May 2013, a VA examiner remarked that the Veteran's fatigue was more likely due to his sleep apnea and depression; prior to this, while the record shows notations of fatigue related to depression, there are only notations of fatigue being possibly related to sleep apnea. As new and material evidence was received prior to the expiration of the appeal period, the issue of service connection for obstructive sleep apnea has remained a pending claim and will be addressed on the merits. Given the fully favorable decision as to this issue, there is no prejudice to the Veteran. In an August 2013 opinion, a VA clinician concluded that the Veteran's claimed disabilities of headaches, fatigue, joint pains, hand numbness, muscle twitching, and poor sleep, with associated anxiety and depression, was at least as likely as not incurred in or caused by claimed in-service injury, event, or illness, to include exposure to environmental hazards during his Gulf War era active service and due to diagnosed medically unexplained chronic multisymptom illness with no etiology. The clinician based this conclusion, in part, on the finding that the Veteran had experienced, since active service, a number of symptoms to include fatigue. At the July 2021 hearing, the Veteran testified, regarding the onset of his sleep apnea symptoms, "I'm going to say in the mid-90s." He testified that he was not sleeping very well at night but that at the time he did not know what sleep apnea was and just was not sleeping effectively through the night. He testified that he became very irritable because of lack of sleep and was chronically fatigued. He relayed receiving a CPAP in 2001, and then estimated that he may have received it in 2005. He testified that his ex-wife, who filed for divorce in September 2001, had told him that he snored and would lose his breath like he was choking. In a July 2021 opinion, the Veteran's VA primary care provider opined that his obstructive sleep apnea is at least as likely as not incurred in service as, by the Veteran's report, he had similar symptoms of feeling tired, lack of energy, and frequent awakenings at night but was not tested for sleep apnea at the time. In a July 2021 statement, the Veteran relayed that adapting back to civilian life was stressful and depressing and that he experienced panic attacks, fits of anger, isolation, and fatigue. Read in the light most favorable to the Veteran, the evidence is at least in equipoise that the Veteran's sleep apnea is related to service. The Veteran consistently reported that his symptoms of fatigue began during service and reported having decreased energy since 1993. The August 2013 VA clinician also concluded that fatigue began during service. The May 2013 VA examiner concluded that fatigue was a symptom of his sleep apnea and, while the August 2013 clinician attributed fatigue to an undiagnosed illness, the clinician did not provide evidence that fatigue might not also be a manifestation of his obstructive sleep apnea. Further, in the July 2021 opinion, the Veteran's primary care provider concluded that sleep apnea was incurred in service, relating his reported symptoms to the disorder. Accordingly, service connection for the disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. A remand is warranted as an addendum opinion is necessary. For the period since November 2001, the Veteran's treating VA psychiatrist has consistently rendered diagnoses of depression or major depression. In a June 2012 VA examination report, the Veteran reported current symptoms of fatigue, irritability, sadness, hopelessness, withdrawal, lack of drive, and trouble sleeping. He reported that he first started having symptoms of depression in 1990. The examiner noted that there were no in-service treatment records supporting this. He reported experiencing several chemical attacks during which alarms sounded, he had to get weapons out of the armory, and he had to get into his MOPP 4 protective gear. The examiner concluded that the stressor is adequate to support a PTSD diagnosis and is related to fear of hostile military or terrorist activity but concluded that the full criteria for PTSD were not met. The examiner rendered a diagnosis of moderate, recurrent major depressive disorder, noting that he had some symptoms of PTSD but did not endorse reexperiencing symptoms, and that his symptoms could be attributed to major depressive disorder. The examiner did not opine as to the nature and etiology of the Veteran's major depressive disorder. As noted above, the Veteran's fatigue was attributed multiple times to both depression and sleep apnea; however, it is unclear whether his in-service fatigue is due to depression. He also reported his symptoms of depression having their onset in service. As there is an indication that his depressive disorder may be related to service, an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the Veteran's psychiatric disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. The clinician is requested to respond to the following: (a.) Please identify by diagnosis all psychiatric disorders current during the period on appeal. (b.) For each disorder identified, is the disorder at least as likely as not (a 50 percent or greater probability) related to Persian Gulf service or otherwise related to service, to include fear of hostile military or terrorist activity? (c.) In responding to question (b.) above, please explain whether the symptoms reported by the Veteran to have begun in service, any symptoms noted in Vet Center records, and symptoms noted in VA treatment records from November 2001, onward, align with how the psychiatric disorder is known to develop. The clinician is requested to consider and address as appropriate the following: Vet Center records from December 1996 to May 1997. The Veteran reported that he was not having any problems because of his tour in the Persian Gulf. He was noted in the intake assessment to be extremely controlling and to have barely controlled anger. See Third Party Correspondence received on December 13, 2002 and Medical Treatment Record Government Facility, received on December 31, 2002. In a December 1998 letter, a private psychologist stated that the Veteran had been treated between February and June 1998 for anger management and marital communication and conflict resolution skills. See Medical Treatment Record Non-Government Facility, received on November 28, 2001. In a November 6, 2001 VA mental health note, the Veteran endorsed decreased sleep for 3 years; decreased appetite for 4 years; decreased energy level since 1993; decreased concentration for a few years; passive suicidal ideation for two years; anhedonia; feelings of hopelessness, worthlessness, and uselessness; increased irritability and anger; feelings of fatigue; isolation; tension headaches; increased startle response; and hypervigilance. In a November 6, 2001 mental health consultation, the Veteran reported that he had been feeling depressed, sad, and suicidal since he came from the Persian Gulf. He reported difficulties with fatigue and decreased energy. In an October 15, 2008 VA mental health note, the Veteran endorsed poor sleeping pattern; poor appetite; decreased energy level; decreased concentration; feelings of hopelessness, worthlessness, and uselessness; anhedonia; crying spells; depressed mood; nightmares of "being killed"; flashbacks from Desert Storm; hypervigilance; increased startle response; and a history of passive suicidal ideation. In a June 2009 private psychiatric evaluation, the Veteran reported working for USPS from 1993 to 1998. He reported that he became bored with the job and started feeling tired and irritable, and that he would stay to himself and was frequently absent. See Medical Treatment Records furnished by SSA received April 2, 2007, pgs. 30-34. In an October 2009 VA examination report, the Veteran reported depression since 1990 and relayed, now knowing what depression is, that he recognized that he had been depressed for a very long time but that the problem had worsened since he left the Gulf. The Veteran has consistently reported fatigue beginning in service after his return from the Persian Gulf. An August 2013 VA clinician concluded that symptoms of fatigue began during service (see Medical Treatment Record Government Facility, received on August 1, 2013). In a November 2010 mental health initial evaluation addendum note, the provider noted that the Veteran was asked if there were any events that occurred while he was in the Army that came back to bother him. The provider noted that he recalled that putting on MOPP 4 gear was stressful at the time but that he did not report it coming back to him without an external reminder. In a June 1, 2011 statement, the Veteran relayed that after separation, he seemed more and more irritable and withdrawn and angry. He stated that being in a combat situation, he was always under extreme stress and fear. The Veteran's July 8, 2021 testimony. The Veteran's reported in-service events and symptoms in a VA 21-0781a form received on July 31, 2021. A September 14, 2021 private psychiatrist opinion regarding the Veteran's PTSD "(per history)" and MDD. See Medical Treatment Record Non-government facility received September 22, 2021. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.