Citation Nr: A21020182 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191218-58198 DATE: December 17, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The evidence of record favors a finding that the Veteran has PTSD related to service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1958 to April 1961 and from October 1962 to June 1982. This case comes before the Board of Veterans' Appeals on appeal from a September 2019 rating decision. In the December 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). By way of background, during the period on appeal, in an April 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for other specified trauma and stressor related disorder. In May 2020, the Veteran filed VA Form 20-0995 for PTSD. In July 2021, the Veteran testified before the Board at a videoconference hearing. The Veteran's wife and daughter were also present for the hearing and offered testimony on behalf on the Veteran. A transcript of the hearing is of record. Entitlement to service connection for posttraumatic stress disorder (PTSD) In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). As noted above, the AOJ has already awarded service connection for other specified trauma and stressor disorder based on a finding that the Veteran experienced in-service stressors. The Board is bound by this favorable finding. The key question at issue is whether the Veteran has a separately diagnosed PTSD disability that is also related to such stressors. In this case, the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD related to service. On the one hand, a July 2019 examiner noted that the Veteran reports clinically significant symptoms of posttraumatic stress, all of which derive from his combat related trauma in Vietnam, but these do not meet full criteria for PTSD and are best described as other specified trauma and stressor related disorder. On the other, in a January 2020 private disability benefits questionnaire (DBQ), which was submitted during the 90-day evidentiary window following the July 2021 Board hearing, the Veteran's private psychiatrist found that the Veteran had diagnoses for PTSD and dysthymia. The private psychiatrist identified the requisite examples of each criterion. Regarding criterion A, there is no dispute that the stressor was met; he experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self of others; and his response involved intense fear, helplessness, or horror. The private psychiatrist noted that two of the examples under criterion B were met, though only one is required to satisfy the DSM-5. The private psychiatrist noted that the Veteran experienced the following: recurrent and distressing recollections of the event; and recurrent distressing dreams of the event. The private psychiatrist noted three of the examples of criterion C were met, and only three were required to satisfy the DSM-5. The private psychiatrist noted avoidance behavior including efforts to avoid thoughts, feelings, conversations with others; inability to recall an important aspect of the trauma; and markedly diminished interest or participation in significant activities. Regarding criterion D, the private psychiatrist noted two examples of persistent symptoms, as required to satisfy the DSM-5. Specifically, the psychiatrist noted the Veteran had hypervigilance and exaggerated startle response. The private psychiatrist concluded that the duration of the symptoms described in criteria B, C, and D, were more than one month and that the PTSD symptoms caused clinically significant distress or impairment in social and occupational functioning. The private psychiatrist noted further that the Veteran has for years avoided talking about his Vietnam experience and that he continues to avoid talking about or thinking about the experience. The doctor noted that the Veteran's primary coping approach has been avoidance, and he tends to redirect conversations to avoid the emotions and reactions to the Vietnam experiences. The record also includes a June 2021 statement authored by the Veteran's private psychologist, M.S., in which he notes that he had been seeing the Veteran in counseling since December 2018. Dr. M.S. noted that the Veteran had suppressed the memories of his experiences in Vietnam for a long time but that he eventually realized that he needed to talk with a professional. Dr. M.S. noted that the Veteran reported frequently being in harm's way from rocket fire and mortar attacks and that he described the constant sound at night of both outgoing and incoming rocket fire. He further noted that the Veteran has clearly attempted over the years to avoid memories, thoughts, and feelings related to the traumatic events and that he has evidenced a heightened level of hypervigilance, horror, and guilt associated with the trauma and problems with concentration. Dr. M.S. concluded that, in his professional opinion, the Veteran meets the criteria for PTSD. Given the evidence above, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD that is related to his period of service. Therefore, service connection for PTSD is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.304. (Continued on Next Page) REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. In this matter, a remand is necessary to correct a duty to assist error that occurred prior to the September 2019 decision on appeal. The Veteran seeks service connection for obstructive sleep apnea (OSA) on both a direct and secondary basis. Concerning secondary service-connection, the Veteran has asserted his OSA is secondary to his service-connected chronic bronchitis with chronic obstructive pulmonary disease (COPD). In its September 2019 rating decision, the AOJ made favorable findings that the Veteran has a diagnosis of OSA and that his claimed primary disability of chronic bronchitis with COPD is service-connected. In June 2019, the Veteran underwent a VA Sleep Apnea examination during which the VA examiner noted that the Veteran had been diagnosed with moderate to severe OSA in March 2019. As a result of the VA examination, the VA examiner opined that the Veteran's obstructive sleep apnea is less likely than not related to COPD or bronchitis. By way of rationale, the VA examiner explained that medical evidence supports that COPD is a chronic inflammatory lung disease that causes obstructed airflow from the lungs, and emphysema and chronic bronchitis are the two most common conditions that contribute to COPD. The examiner further explained that chronic bronchitis is inflammation of the lining of the bronchial tubes, and these conditions center around inflammation and obstruction of airflow from the lungs. The examiner explained that OSA occurs from obstruction of the major airways of the throat which, with partial or total obstruction, promote apnea. The examiner concluded that both conditions can impact breathing, but these conditions are not associated nor is there a causal connection suggested in medical literature. See June 2019 VA examination report. The June 2019 medical opinion appears to be incomplete, as the examiner only addressed the causation aspect of secondary service connection and did not address the aggravation aspect. 38 C.F.R. § 3.310. Once VA undertakes an effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one, or at a minimum, notify the Veteran as to why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The U.S. Court of Appeals for Veterans Claims (Court) has held that a medical opinion which focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition. When causation and aggravation are at issue, the Board must ensure that the opinion addresses each. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Thus, a VA addendum medical opinion that adequately addresses both the causation and aggravation aspects of secondary service connection is required. As such, the Board finds that there has been a pre-decisional duty-to-assist error warranting an addendum opinion on remand. The matter is REMANDED for the following action: Return the claims file to the June 2019 examiner (or another qualified clinician, if unavailable). The claims file must be sent to, and reviewed by the clinician. A new physical examination is not required unless deemed necessary by the clinician. The reviewing clinician should address the following: Is it at least as likely as not (probability of 50 percent or greater) that the Veteran's OSA was aggravated by the Veteran's service-connected COPD? In offering the opinion, the examiner should consider the medical articles that the Veteran filed discussing potential associations between OSA, COPD, and bronchial inflammation. (Continued on Next Page) A clear rationale for all opinions should be provided. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.