Citation Nr: 21008113 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-60 270 DATE: February 11, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), including as secondary to service-connected disabilities, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, including as secondary to an acquired psychiatric disorder, is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, an acquired psychiatric disorder, to include depression and PTSD, is related to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, including as secondary to service-connected disabilities, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Air Force from January 1969 to December 1972. Historically, the Board notes that the service connection claims for PTSD and depression were denied by the Department of Veterans Affairs (VA) Regional Office (RO) in an October 2012 rating decision. In May 2014, the psychiatric claims were reopened and denied once again by the RO. Following an appeal to the Board, the claims were recharacterized into one as any psychiatric disorder, to include depression and PTSD in a December 2018 decision. Additionally, the Board reopened and remanded the claim for further development. The claim is now before the Board for appellate review. In light of the evidence of record, the Board has recharacterized the claim again to include service connection for an acquired psychiatric disorder due to all service-connected disabilities. Additionally, the Board notes that the claim of entitlement to service connection for obstructive sleep apnea is on appeal from the May 2014 rating decision. In that decision, the RO denied the claim as it found there was no link between the Veteran’s condition and his military service. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, including as secondary to service-connected disabilities, is granted. The Veteran has asserted that he is warranted service connection for an acquired psychiatric disorder. Specifically, he contends that his psychiatric disorder is secondary to his service-connected residuals of a gunshot wound of the right thigh. VA treatment records indicate the Veteran has been diagnosed with depression, PTSD, and an adjustment disorder with mixed anxiety and depressed mood. See February 2020 medical record. A December 2016 private opinion includes a diagnosis of generalized anxiety disorder with overlapping and undifferentiated trauma related stressors and depressive disorder. The diagnosis was clarified in a February 2019 addendum and characterized as a generalized anxiety disorder with overlapping and undifferentiated trauma. The record includes a December 2016 private psychologist opinion conducted by Dr. R.W. Following an interview with the Veteran, a review of the claims file, and an objective evaluation of current research and medical literature, the physician diagnosed the Veteran with generalized anxiety disorder with overlapping and undifferentiated trauma related stressors and depressive disorder. Citing medical research and medical evidence of record, the physician opined the Veteran’s disorder more likely than not began in service and was aggravated by his service-connected residuals of a gunshot wound of the right thigh, residuals of a contusion of the left heel, and bilateral hearing loss. In a February 2019 addendum following remand for a clarifying opinion, the psychologist clarified his diagnosis of the Veteran’s condition as a generalized anxiety disorder with overlapping and undifferentiated trauma. He opined that it is more likely than not the Veteran’s condition began in service and was permanently aggravated by his service-connected conditions, namely residuals of a gunshot wound, residuals of a contusion to the left heel, and bilateral hearing loss. He noted that the Veteran did not have a mental condition prior to service but that he began experiencing symptoms of depression and anxiety in basic training and it progressed after the gunshot wound. The opinion took into consideration the Veteran’s reported symptomatology and was based on reasoned analysis. The Board finds that the December 2016 and February 2019 opinions provide the most probative evidence as to the diagnosis and etiology of the Veteran’s psychiatric disorder due to his service-connected disabilities. The Board acknowledges there are VA examinations of record providing unfavorable nexus opinions. However, the Board has found the examinations are inadequate as they did not address all theories of entitlement and/or all of the relevant evidence of record. See September 2012, May 2014, and November 2020 VA examinations. In summary, resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his acquired psychiatric disorder is caused by his service-connected residuals of a gunshot wound of the right thigh, residuals of a contusion of the left heel, and bilateral hearing loss. Accordingly, the Veteran’s service connection claim for an acquired psychiatric disorder, diagnosed as depression, PTSD, and generalized anxiety disorder with overlapping and undifferentiated trauma, must be granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea, including as secondary to an acquired psychiatric disorder, is remanded. A review of the claims file reveals the Veteran has been diagnosed with sleep apnea. A March 2017 disability benefits questionnaire (DBQ) suggests the Veteran’s sleep apnea is related to his now service-connected acquired psychiatric disorder. Specifically, the March 2017 DBQ notes that “psychological impairments such as depression and anxiety are well-documented in the medical community to contribute materially to the development/permanent aggravation of sleep apnea.” The Veteran has not been afforded a VA examination in connection with his claim. Therefore, remand is necessary for a medical opinion. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should schedule the Veteran for a VA examination with a qualified examiner to determine the nature and etiology of the Veteran’s sleep apnea. The examiner should review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service VA treatment records, post-service private treatment records, lay statements, and prior VA examination reports. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran’s sleep apnea manifested in service or is otherwise related to his military service, to include any symptomatology therein. The examiner should also state whether it is at least as likely as not that the Veteran has sleep apnea that is either caused by or is aggravated by his service-connected acquired psychiatric disorder. In this regard, the examiner should note that a rationale is required for both causation and aggravation and that a permanent worsening of the claimed disorder is not required (compensation may be due for an incremental increase caused by the service-connected disability). The examiner should address the March 2017 DBQ in which the physician suggests a link between the Veteran’s sleep apnea and psychiatric disorder, including noting the fact that the connection it is well documented in the medical community. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.