Citation Nr: 21077293 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-27 664 DATE: December 29, 2021 REMANDED Service connection for posttraumatic stress disorder (PTSD) is remanded. Service connection for sleep apnea with restless leg syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to October 1968. Among other awards, he is a recipient of the Combat Infantry Badge and Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2017 VA Form 9, the Veteran requested a hearing before the Board via live videoconference. In January 2020, the Veteran requested to reschedule his hearing due to a scheduling conflict. The record demonstrates that the Veteran was scheduled for a new hearing date; however, he failed to appear. To date, there has been no contact from the Veteran regarding his missed hearing date or a request to reschedule. As such, the Board will proceed with adjudication below. 1. Entitlement to service connection for PTSD is remanded. 2. Entitlement to service connection for sleep apnea with restless leg syndrome is remanded. The Veteran seeks service connection for PTSD and contends it is related to his military service. Specifically, he asserts in a March 2020 lay statement that he "served in combat during Vietnam and received a Purple Heart." Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d); see also Collette v. Brown, 82 F. 3d 389 (Fed. Cir. 1996) (under 38 U.S.C. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12 99 (October 18, 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F. 3d 988, 998-99 (Fed. Cir. 2012). Every reasonable doubt must be resolved in the Veteran's favor, and service connection of injuries or diseases linked to combat may be rebutted only by clear and convincing evidence. 38 U.S.C. § 1154(b). Nevertheless, service treatment records fail to disclose complaints or treatment of PTSD or other psychiatric disability. The Veteran's VA treatment records also do not contain a diagnosis of PTSD or other psychiatric diagnosis. At his October 2015 VA examination for PTSD, the Veteran reported two combat stressors: (1) a landmine explosion on a track resulting in an injury to his jaw, (2) seeing a fellow soldier get shot in the neck, and another soldier hit in the head with a rocket-propelled grenade (RPG). The examiner reviewed the Veteran's claims file and conducted a clinical evaluation. The examiner found that the Veteran did not have PTSD or any other psychiatric disorder. Specifically, the examiner found that the Veteran did not have a mental disorder that conforms with DSM-5 criteria and there was no occupational and social impairment due to a mental disorder diagnosis. However, in the section of the evaluation titled: PTSD Diagnostic Criteria, the examiner indicated that both stressor (1) and (2) above contributed to the Veteran's PTSD diagnosis. The examiner also indicated that a chronic sleep impairment symptom actively applied to the Veteran's diagnosis. The examiner then remarked that the Veteran "described a delayed onset of symptoms about 7-8 years ago, consisting of intrusive memories of the war and sleep problems." The Board finds that a new VA examination is needed because the October 2015 report appears inconsistent and is inadequate. Based on the examiner's report, it is unclear whether the Veteran has a current diagnosis of PTSD. Additionally, the psychologist did not provide a nexus opinion (or any semblance of a rationale). As this issue is being remanded, the Board notes that although the Veteran has a Purple Heart and CIB, the record does not contain any development regarding the stressors and does not indicate whether the RO conceded them. Accordingly, the RO should attempt to verify the Veteran's reported stressors. Regarding the Veteran's claim for contended sleep apnea, the Veteran's service treatment records and VA treatment records co not show complaints of or treatment for a sleep disorder, to include diagnosed sleep apnea. Nevertheless, the Veteran asserts that he has sleep apnea with restless leg syndrome. In the October 2015 VA examination report for PTSD, the psychologist indicated that the Veteran reportedly suffers from chronic sleep impairment. The psychologist also indicated that the Veteran has had sleep problems for about 20 years and that its causes appear to be multifactorial; noting that the Veteran also has aches and pains in his body due to peripheral neuropathy. In a September 2013 VA rehabilitation consultation note, a clinician indicated that the Veteran's symptoms of pins and needles in his feet and legs caused a painful sensation especially at night when trying to sleep. Although there is no evidence of a diagnosis for sleep apnea, it appears the Veteran may have a sleep disorder that is secondary to his service-connected peripheral neuropathy of the lower extremities. As such, the issue is recharacterized as service connection for a sleep disorder secondary to peripheral neuropathy of the lower extremities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Considering this recharacterization and the implication of a sleep disorder, secondary to his service-connected peripheral neuropathy of the lower extremities, a medical opinion is necessary to determine whether the Veteran has a current sleep disorder and if so, whether it is due to or aggravated by his service-connected peripheral neuropathy of the lower extremities. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any private records of treatment for the claimed disabilities. The RO must follow the procedures laid out in 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any outstanding VA treatment records and associate them with the claims file. 3. Attempt to corroborate the Veteran's in-service stressors, including (1) a landmine explosion that resulted in a jaw injury and (2) witnessing a shooting of fellow soldier in the neck and witnessing a shooting of another solider in the head with an RPG. If more details are needed, contact the Veteran to request the information. 4. After the Veteran's reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD or other psychiatric/mental health disability. (a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b) If the Veteran is diagnosed with a personality disorder and PTSD - the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. (c) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include service in Vietnam. 5. Schedule the Veteran for a VA examination for his claimed sleep disorder. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. If a sleep disorder is diagnosed, the examiner is asked to provide a response to the following: (a) Is the sleep disorder at least as likely as not proximately due to his service-connected peripheral neuropathy of the lower extremities? (b) Is the sleep disorder at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected peripheral neuropathy of the lower extremities? For all opinions, complete rationales should be provided. The clinician should reconcile any opinion with all other clinical evidence of record and the Veteran's and other lay evidence. The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. The clinician may consider whether the reports are consistent with the medical evidence. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.