Citation Nr: 21013135 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-19 732 DATE: March 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected rhinitis, is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea and insomnia, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to March 1977, with additional Reserve service. These matters come before the Board of Veterans’ Appeals (Board) from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in July 2018, August 2019, and September 2020. 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected rhinitis, is remanded. The Veteran contends his acquired psychiatric disorder is related to his experiences in service, to include while serving at a military prison at Camp Pendleton where he claims to have been threatened by prisoners. In its July 2018 remand, the Board determined a VA examination was needed to ascertain the etiology of this disorder. Furthermore, because the Veteran had reported a history of depression or excessive worry on his entrance questionnaire, the Board found the presumption of soundness was implicated. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As such, the Board directed future examiners to opine as to whether it was “clear and unmistakable” that the Veteran entered active service with a pre-existing psychiatric disorder; and if so, whether it was clear and unmistakable that such a disorder was not aggravated beyond the natural progress of the disorder by his active service. If not, the examiner was directed to opine as to whether the Veteran’s acquired psychiatric disorder was incurred in service or, alternatively, secondary to his service-connected rhinitis. A VA medical opinion was provided in March 2019; however, the Board determined in its August 2019 remand that the opinion was inadequate. Another opinion was provided in January 2020. In its September 2020 remand, the Board again found the opinion was inadequate, as it failed to use the “clear and unmistakable” evidence standard. The Board further noted the examiner did not opine as to whether the Veteran’s acquired psychiatric disorder was secondary to his service-connected rhinitis, nor did the examiner opine as to the etiology of the Veteran’s sleep disorder. Thereafter, another VA medical opinion was provided in November 2020. Regrettably, this opinion also fails to satisfy the Board’s remand directives. First, the examiner did not bother to actually opine as to whether the Veteran’s acquired psychiatric disorder pre-existed his service; the examiner simply assumed as much, stating it was “less likely than not” that the Veteran’s psychiatric symptoms were an aggravation of a pre-existing mental disorder. The examiner provided little meaningful rationale in support of this opinion, noting only that there were “no documented records of diagnosis or treatment for excessive worry, anxiety, depression, sleep disorder, or other behavioral disorders.” Infuriatingly, the examiner made no reference to any of the copious lay statements of record from both the Veteran and his family members and acquaintances indicating the Veteran suffered from behavioral changes and other mental health problems in service. Furthermore, the examiner neglected to opine as to whether the Veteran’s acquired psychiatric disorder was secondary to his service-connected rhinitis. All told, the November 2020 VA opinion not only fails to substantially comply with the Board’s prior remand directives; in addition, the opinion represents a disrespectful lack of consideration for a Veteran who has been waiting a long time for resolution to his appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers on the claimant the right to compliance with the remand orders, as a matter of law). The Board notes the Veteran has requested multiple times to participate in an actual psychiatric examination, including most recently in a January 2021 statement; he argues, understandably, that prior examination reports have not accurately characterized his mental health history. Given VA’s repeated failures to meaningfully address the Veteran’s contentions, the Board finds it is eminently reasonable that the Veteran be granted an examination so that he may fully explain his symptom history and respond to questions posed by a different medical professional than those who have authored opinions in the past. 2. Entitlement to service connection for a sleep disorder, to include sleep apnea and insomnia, is remanded. The Veteran has argued his sleep disorder, to include sleep apnea and insomnia, is secondary to his service-connected back disability. The record also shows sleep disturbance to be a symptom of his (as yet not service-connected) acquired psychiatric disorder. The Board notes that the November 2020 VA medical opinion discussed above concluded it was “less likely than not that [the Veteran’s] sleep apnea is due to his current mental disorder of unspecified depressive disorder.” No rationale was provided in support of this opinion, however, and it is therefore not considered probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (the probative value of a medical opinion is derived from factually accurate, fully articulated, and sound reasoning). The Veteran has never been provided a VA sleep apnea examination. Such should be afforded on remand. Moreover, because the Board is remanding the claim of entitlement to an acquired psychiatric disorder, for which sleep disturbance may be a symptom, the Board finds the claims are intertwined. See Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from September 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate examiner who has not previously examined the Veteran to determine the nature and etiology of any acquired psychiatric disorder. The examiner must respond to the following: (a) Identify any current acquired psychiatric disorder/s. (b) Is there clear and unmistakable (obvious and manifest) evidence demonstrating the Veteran had an acquired psychiatric disorder that existed prior to his entry into active duty? (c) If the answer to (a) is “Yes,” is there clear and unmistakable (obvious and manifest) evidence demonstrating that the Veteran’s acquired psychiatric disorder was not aggravated (i.e., the underlying disability was not increased in severity) beyond its normal progression during his period of active duty? (d) If the answer to (a) is “No,” is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder was incurred in active duty or is otherwise related to service? The examiner should specifically discuss: • All pertinent lay statements, to include the Veteran’s descriptions of his experiences while on prison guard duty in service and statements submitted in early 2020 by the Veteran’s family members and acquaintances noting his behavioral changes and emotional distress due to his experiences in service. • The July 1976 service personnel record showing the Veteran was a member of the USMC Corrections Battalion at Camp Pendleton and was demoted from Lance Corporal to Private First Class due to an Article 15 action. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder is caused or aggravated by any service-connected disease or injury, to include rhinitis? All opinions must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 3. Schedule the Veteran for an examination by an appropriate examiner who has not previously examined the Veteran to determine the nature and etiology of any sleep disorder, to include sleep apnea. The examiner must respond to the following: (a) Identify any current diagnoses related to the Veteran’s claimed sleeping disorder, to include sleep apnea (if applicable). (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep disorder, to include sleep apnea, was incurred in or is otherwise related to active service? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep disorder, to include was caused or aggravated by any service-connected disease or injury? (d) If a different etiology for the Veteran’s sleep disorder, to include sleep apnea and insomnia, is determined, that should be stated. All opinions must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.