Citation Nr: 21010180 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-38 750 DATE: February 24, 2021 ORDER Entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s service-connected right foot disability proximately caused his back disability. CONCLUSION OF LAW The criteria to establish service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1985 to September 1989. He appeals a January 2014 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in December 2020. A transcript is of record. The Veteran’s treatment and examination records include diagnoses of PTSD and depressive disorder. The Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the Board has recharacterized the claim on appeal to entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Back Disability The Veteran has a back disability diagnosed as lumbar strain. See August 2013 VA examination report. The Veteran is currently service connected for a right foot disability. See January 2014 rating decision. Accordingly, the first and second Wallin elements are met. The Veteran attended an August 2013 VA examination. The examiner opined that it is at least as likely as not that the Veteran’s back disability was proximately due to or the result of his service-connected right foot disability. The examiner reasoned that the Veteran’s foot injury and fracture in 1988 with surgical repair in 1989 can lead to uneven stress on the lumbar spine and cause his spine condition. See August 2013 VA examination report. The Board finds this opinion credible. Thus, the August 2013 VA medical opinion provided a causal link between the Veteran’s service-connected right foot disability and his back disability. Accordingly, the Board finds that a grant of service connection is warranted for a back disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disability, claimed as PTSD and/or depressive disorder, which was caused or aggravated by his active service. The Veteran has a diagnosis both of PTSD and depressive disorder. See January 2020 Dr. G.M.K. letter; see also August 2016 Dr. P.K.S. letter. The Veteran has provided credible lay statements regarding his purported stressor in service. Specifically, he describes an event where someone pointed a gun at him in a park while on active duty. See hearing transcript at 4-6. This has also been corroborated by his wife during his December 2020 Board hearing. See hearing transcript at 10-11. The Veteran was afforded a VA examination in August 2013. The VA examiner also diagnosed the Veteran with depressive disorder NOS, alcohol dependence, and personality disorder NOS with antisocial and narcissistic features. The August 2013 examiner opined that the Veteran’s personality disorder was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran has a personality disorder that developed in childhood and adolescence. The coping deficit associated with this disorder most likely adversely affected the Veteran’s mood leading to depression. Both conditions foster and are aggravated by alcohol abuse and dependence. See August 2013 VA examination report. However, the Board notes that service connection cannot be granted for a personality disorder, as it is not a disability for VA purposes. A review of the August 2013 examination was requested by the AOJ, and a subsequent December 2013 opinion was produced. The December 2013 opinion concluded that the Veteran’s current mental health condition is not caused by or aggravated by his foot condition in service, and that the Veteran’s current mental health condition is not related to his military service. See December 2013 VA opinion. However, the record does not contain any opinion regarding the etiology of the Veteran’s diagnosed PTSD or depressive disorder. Further, the December 2013 VA opinion alluded that the Veteran contends his depression is caused by his back disability, which has since been service-connected in the instant decision. Thus, the Board finds that remand is warranted for a new examination to address the etiology of both the Veteran’s PTSD and depressive disorder, as well as his contention that his depression is secondary to his back disability. 2. Sleep Apnea The record contains a diagnosis of sleep apnea. See August 2013 VA examination. The Veteran and his wife provided credible testimony stating that his symptoms of sleep apnea began in service and have continued ever since. See hearing transcript at 21-25. The record contains an August 2013 VA opinion regarding secondary service connection which ultimately concluded that the Veteran’s sleep apnea is not related to his service-connected foot disability. However, the record does not contain an opinion regarding direct service connection. As such, remand is warranted to obtain an appropriate direct service connection opinion. Additionally, the Veteran contends that his sleep apnea is caused by his PTSD. See August 2016 VA Form 9. Therefore, a remand is necessary to have the AOJ schedule a VA examination to determine whether the Veteran’s sleep apnea is related to active duty service or whether the disability was caused or aggravated by his PTSD. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his acquired psychiatric disorder and sleep apnea that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an appropriate examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD and depressive disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. The examiner should identify all acquired psychiatric disabilities present. For each identified psychiatric disability, the examiner is asked to respond to the following inquiry: (a.) Is it at least as likely as not that any diagnosed psychiatric disorder, to include but not limited to depressive disorder, was incurred in, or otherwise related, to the Veteran’s time on active service? (b.) Is it at least as likely as not that that any diagnosed psychiatric disorder was proximately caused OR aggravated by the Veteran’s service-connected back disability? (c.) Is it at least as likely as not that the Veteran has PTSD? (d.) If PTSD is diagnosed, the examiner should identify the specific stressors that led to the condition. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for an examination to assess the nature and etiology of his sleep apnea. The examiner must review the claims in conjunction with the examination. After reviewing the claims file and examining the Veteran, the examiner should provide the following opinions: (a.) Is it at least as likely as not that the Veteran’s sleep apnea was incurred in and/or is a result of his active service? (b.) Is it at least as likely as not that the Veteran’s sleep apnea was proximately caused OR aggravated by a diagnosed psychiatric disability, to include PTSD? The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   4. After the above has been completed to the extent possible, readjudicate the claims. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.