Citation Nr: 21009319 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 11-16 729 DATE: February 22, 2021 REMANDED The issue of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. The issue of service connection for a sleep disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1970 to April 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office. Most recently, in July 2020, the Board remanded these matters for further evidentiary development. Acquired Psychiatric Disorder The Veteran asserts he suffers from an acquired psychiatric disorder due to in-service personal assault. See October 2003 Correspondence. At any time during the pendency of a Veteran’s claim, when the VA knows or has reason to know that a Veteran’s claim is based on an in-service personal assault, the VA must complete the following: (1) advise the Veteran that evidence from sources other than the Veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, and (2) allow the Veteran an opportunity to furnish this type of evidence or advise the VA of potential sources of such evidence. See 38 C.F.R. § 3.304(f)(5); see also Gallegos v. Peake, 22 Vet. App. 329, 335-337 (2008). In September 2020, a decision review officer (DRO) noted, “The Veteran’s indicated stressor is basically personal trauma/harassment. Although not indicated in remand, review of the claim does not show full development for personal trauma was done.” See September 2020 Deferred Rating. Accordingly, the DRO directed completion of required personal trauma development. Id. To date, the Veteran has not been sent a personal assault notification letter or development from the AOJ. Accordingly, the Board may not adjudicate the Veteran’s claim without the AOJ’s compliance with the aforementioned requirements. The Board also finds that the Veteran has not been afforded an adequate VA examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder(s) and its relation, if any, to service. Pursuant to the July 2020 Board remand, a VA opinion was obtained in August 2020. The Board finds, however, that the opinion is inadequate as it appears to rely solely on the lack of in-service records to corroborate the Veteran’s claim. Significantly, the September 2020 DRO also noted, “The examiner’s opinion was based on a lack of in-service evidence.” See September 2020 Deferred Rating. Therefore, also considering the development of the Veteran’s claim based on in-service personal assault, remand is necessary to obtain a VA examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder, to include depression and anxiety. Sleep Disorder Pursuant to the July 2020 Board remand, a VA medical opinion was to be obtained to determine the nature and etiology of the Veteran’s claimed sleep disorder. Specifically, in part, the examiner was to indicate whether the Veteran has a current diagnosis for a sleep disorder that is separate and apart from his acquired psychiatric disorder. In an August 2020 VA opinion, the examiner stated, “There is no evidence that any psychiatric or sleep disorder had an onset while in the service or is otherwise related to active service. [The] Veteran self-reported . . . sleep difficulties after his discharge from the service.” The examiner continued, “[The] Veteran’s current sleep disorder is primarily related to, and caused by his chronic pain syndrome, and the pain associated with that condition is due to his work at the post office, not his military service.” As noted by the Veteran’s representative in the January 2021 Appellate Brief, the examiner’s opinion does not address whether the Veteran has a current diagnosis for a sleep disorder that is separate and apart from any diagnosed acquired psychiatric disorder. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, on remand, the Veteran must be afforded a VA examination by an appropriate medical examiner to determine the nature and etiology of any sleep disorder. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Provide the Veteran with the required specialized notice regarding personal trauma pursuant to 38 C.F.R. § 3.304(f)(5) and afford him an opportunity to respond. The importance of secondary evidence in establishing the occurrence of personal assault should be indicated. 3. After the above development has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorder found on examination, to include PTSD, depression, and/or anxiety disorder. Provide the Veteran’s entire electronic claims file to the designated examiner for review. The reports of any indicated tests or studies, such as psychological testing, must be associated with the examination report. The examiner should clearly identify each psychiatric disorder found on examination. The examiner must opine whether the evidence of record, including the Veteran’s lay statements and service records, corroborate the claim that a personal assault occurred involving sexual assault. See October 2003 Correspondence. If the examiner finds that the evidence indicates that a personal assault occurred during the Veteran’s military service, the examiner must opine whether it is at least as likely as not that any PTSD is related to the in-service personal assault. 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 disease or injury. A detailed examination must be provided for all opinions expressed. If no disorder is currently found, the examiner must express whether any disorder, to include depression and anxiety, existed earlier in the appeal period, and the examiner should explain why the noted evidence does not establish a chronic diagnosis. In providing the requested opinions, the examiner must determine whether there is evidence of behavior changes demonstrated by the Veteran; and if so, if said changes are consistent with the expected reaction or adjustment of a person who has been subjected to an assault. The examiner should address the concept of delayed expression if applicable. In providing the requested opinions, the examiner must also specifically consider: i) the Veteran’s June 2007statement that he was diagnosed with a nervous condition while in Germany, during active duty service; ii) his October 2003 statement that he had psychiatric symptoms after an incident where he was beat up by soldiers and was approached by his sergeant; iii) the June 1974 Medical Certificate and History indicating that he was nervous on his return from his tour of duty in Germany; iv) the October 1977 VA treatment records noting his request for treatment for a nervous condition; v) the October and November 1993 VA treatment records showing treatment for symptoms of depression and anxiety; and vi) the Gastrointestinal Specialists treatment records from March 1995, October/November 2010, and May 2011 indicating that the Veteran has chronic insomnia, anxiety, and depression that is related to his active duty service. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran’s claimed sleep disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All clinical findings should be reported in detail. a) The examiner must indicate whether the Veteran has a current diagnosis for a sleep disorder that is separate and apart from any acquired psychiatric disorder. b) If, and only if, the Veteran has a sleep disorder that is separate from any acquired psychiatric disorder, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed sleep disorder had its onset in, or is otherwise related to, the Veteran’s active duty service. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an (Continued on next page) opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.