Citation Nr: 21006373 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-26 428 DATE: February 4, 2021 REMANDED Service connection for sleep apnea is remanded. Service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran originally filed a service connection claim for military sexual trauma and depression. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. Thus, in light of the Court’s decision in Clemons, the Board has re-characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder. 1. Service connection for sleep apnea is remanded. The Board cannot make a fully-informed decision on the issue of service connection for sleep apnea because no VA examination has been conducted and no VA examiner has opined whether it began during service. 2. Service connection for an acquired psychiatric disorder is remanded. The Board cannot make a fully-informed decision on the issue of service connection for an acquired psychiatric disorder, including depression, biploar disorder, or posttraumatic stress disorder (PTSD) because no VA examination has been conducted and no VA examiner has opined whether it began during service or is related to the military sexual trauma the Veteran reported during service. Furthermore, no VA examiner has opined as to whether it preexisted service, and if so, whether it was clearly and unmistakably not aggravated during service. This is relevant because, at the September 2020 Board hearing, the Veteran testified that he experienced sexual abuse as a young teenager, yet the Report of Medical Examiantion at entrance to service is normal. Additionally, the Veteran reported having treatment at the Charles George VA Medical Center. VA medical records have only been associated with the claims file to the extent of the Veteran’s participation in a clinical trial. The April 2017 Statement of the Case notes that January 2015 treatment reports from VAMC Ashville show complaints of depression linked to unwanted sexual advances in service. These records are not associated with the claims file. On remand, these and any other VA treatment records must be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify dates he began receiving VA treatment. Then, obtain the Veteran’s VA treatment records for the period from the date the Veteran identified to the present. If records are not available, this should be documented. 2. Attempt to corroborate the Veteran’s in-service stressors based on personal assault, including unwanted sexual advances from a fellow servicemember (see September 2015 VA Form 21-0781a) and an incident while in his barracks that a group of soldiers attacked him in bed and tied his legs and feet to the bedposts. If more details are needed, contact the Veteran to request the information. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include depression, bipolar disorder or posttraumatic stress disorder (PTSD). The examiner must provide the following opinions: (a.) First, with respect to the teenage sexual abuse and bullying the Veteran reported at the September 2020 Board hearing, the examiner must opine as to whether the Veteran’s current acquired psychiatric disorder clearly and unmistakably (undebatably) preexisted the Veteran’s service. (b.) If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine as to whether the current acquired psychiatric disorder was clearly and unmistakably not aggravated by service. (c.) If the disability is (1) not found to have preexisted a period of active service, or (2) it is found to have clearly and unmistakably existed prior to service but there is no clear and unmistakable evidence that it was not aggravated by service, determine whether it is at least as likely as not that it began in or is related to active military service. (d.) If the Veteran is diagnosed with PTSD, the examiner must opine whether the evidence of record, including the Veteran’s lay statements and the Veteran’s service records, corroborate the claim that a personal assault(s) occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault(s) occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault(s). (e.) 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 the in-service personal assaults. Although an independent review of the claims file is required, the examiner’s attention is called to: a) the September 2015 VA Form 21-0781 describing unwanted sexual advances from a fellow servicemember; and b) the September 2020 Board hearing transcript at pages 9 to 20 detailing the Veteran’s accounts of unwanted sexual advances and an incident in his barracks in which a group of soldiers attacked him in bed and tied his legs and feet to the bedposts. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Schedule the Veteran for a VA examination for his reported sleep apnea. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is sleep apnea at least as likely as not related to service, including having begun in service as the Veteran testified on page 25 of the September 2020 Board hearing transcript. Provide a rationale to support the opinion(s). 5. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.