Citation Nr: 21014365 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-62 156 DATE: March 12, 2021 ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for posttraumatic stress disorder, also claimed as anxiety, (hereinafter referred to as “PTSD”), the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea, the appeal to this extent is allowed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disorder, is remanded. Entitlement to service connection for hypertension, to include as secondary to a service-connected disorder, is remanded. FINDINGS OF FACT 1. The November 5, 2013 Board decision that denied service connection for the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD, depressive disorder, and anxiety is final. 2. New and material evidence has been submitted since the last denial in November 2013, and the claim of service connection for an acquired psychiatric disorder to include PTSD is reopened. 3. In the last final November 2011 rating decision the Regional Office (RO) confirmed the denial of the Veteran’s claim of entitlement to service connection for sleep apnea. 4. Evidence received since the November 2011 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim of service connection for sleep apnea. CONCLUSIONS OF LAW 1. New and material evidence has been received since the last Board denial in November 2013, and the claim of service connection for an acquired psychiatric disorder to include PTSD is reopened. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156. 2. The November 2011 rating decision confirming the denial of the Veteran’s claim of entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been submitted since the last denial in November 2011 and the claim of service connection for sleep apnea is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1984 to March 1986. In a November 2019 decision the Board denied reopening the Veteran’s claims of entitlement to service connection for PTSD and sleep apnea and denied the Veteran’s claim of entitlement to service connection for hypertension to include as secondary to a service-connected disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in October 2020 granting a Joint Motion for Remand (JMR) filed by the Veteran’s representative and the VA Office of the General Counsel. The parties to the JMR found that the Board’s statement of reasons or bases was inadequate to support its determination that the Veteran failed to submit new and material evidence sufficient to reopen his claim of entitlement to service connection for PTSD. They noted that the Board determined that no competent and credible evidence suggested that the Veteran had PTSD that was etiologically related to service particularly as a result of the Veteran’s stressor of a botched field exercise in Germany. The Board found that the Veteran failed to provide evidence addressing whether his PTSD was related to a corroborated in-service stressor including whether he ever had a period of service in Germany. The parties found it significant that following the November 2013 denial, the Veteran in October 2019 submitted additional evidence in the form of an internet newspaper article that showed his unit may have been assigned to Germany where the alleged stressor occurred. The parties pointed out that this information was relevant because the Board previously determined that the Veteran’s service treatment records were incomplete. Thus, they remanded the issue for the Board to consider whether the Veteran’s submissions were sufficient as new and material evidence to reopen his claim of entitlement to service connection for PTSD. The other two issues of sleep apnea and hypertension, to include as secondary to PTSD, were remanded as they are inextricably intertwined with the PTSD claim.   Issues 1-2: Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD; and whether new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea, to include as secondary to a service-connected disorder. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, in the November 2013 decision, the Board denied service connection for an acquired psychiatric disorder to include PTSD, depressive disorder, and anxiety based on the determination that there was conflicting evidence as to whether the Veteran met the criteria for a diagnosis of PTSD and if he did it was less likely than not a result or consequence of a traumatic stressor in service. The Board also found that there was no competent or credible evidence showing that the Veteran had any other acquired psychiatric disorder due to service. In rendering this decision, the Board considered evidence to include the Veteran’s contentions, DD 214 Form, statements including in October 2009 from several family members, March 2012 statement from a fellow service buddy, and treatment records. The evidence added to the record since the November 2013 Board decision includes VA treatment records including in March 2017 that show a diagnosis of PTSD and major depressive disorder. In a statement in February 2021, the Veteran reiterated his in-service stressor. He stated that approximately from January 6, 1986 to February 26, 1986, his unit, SVC Btry 1/5th Fort Riley Kansas, was assigned to the Reforger exercises in Grafenwoehr, West Germany. The Veteran stated on January 13, 1986 they were unloading equipment that they convoyed from Antwerp to the Grafenwoehr training area in West Germany. He was riding in a military vehicle when the convoy came to a complete stop as soldiers were outside screaming and panicking as they saw tanks were turning their equipment aimed at their convoy. The Veteran stated that they were not fired upon after getting all vehicles turned around and proceeded to where their units had set up camp. In an October 2019 brief, the Veteran’s attorney stated that the Veteran served in Germany during the Reforger exercises (Return of Forces to Germany) in 1986, in which American troops and equipment were brought to Europe to reinforce NATO forces. During the Reforger exercises of 1986 nicknamed “Certain Sentinel” the Veteran served in the 1st Infantry Division at Fort Riley, Kansas. The Veteran’s attorney pointed out that the Veteran’s service personnel records were incomplete as in March 2010 the Agency of Original Jurisdiction (AOJ) noted that the Veteran’s file was incomplete and there was no chronological history of assignment. She cited an Associated Press article dated January 11, 1986 that notes that troops from the 1st Infantry Division from Fort Riley, Kansas were among the joint troops from several other US-based institutions for Reforger exercises in Germany that month, which is consistent with the Veteran’s contention of service in Germany in 1986. This additional evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim as the evidence provides additional details regarding the Veteran’s claimed inservice stressor. Thus, as the Veteran has supplied more verifiable information regarding his claimed in-service stressor, his claim is reopened. As for sleep apnea, the RO in a May 2010 rating decision denied the Veteran’s sleep apnea claim based on a lack of nexus. At the time of the May 2010 rating decision, the evidence of record included VA and private treatment records confirming a current disability. The service treatment records were not available for the rating decision. The Veteran sought reconsideration and a November 2011 rating decision continued the denial of service connection for sleep apnea. The service treatment records were still unavailable for review. The Veteran did not perfect an appeal of the above decision and additional new and material evidence was not received within a year following the decision. See 38 C.F.R. § 3.156(b). The decision is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The evidence added to the record since the last final rating decision includes a February 2021 statement from a fellow service buddy, K.F., who confirmed he served with the Veteran in the 1st Battalion 5th Field Artillery. He stated that they were roommates and he got scared as he thought the Veteran stopped breathing while sleeping many nights. He also noted that the Veteran snored loudly. Thus, the evidence received is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim of service connection for sleep apnea. The credibility of the evidence is presumed for the purposes of reopening the claim of service connection for sleep apnea. REASONS FOR REMAND Issues 3-5: Entitlement to service connection for an acquired psychiatric disorder to include PTSD; and entitlement to service connection for sleep apnea and hypertension, to include as secondary to a service-connected disorder. As discussed above, the Veteran contends that his in-service PTSD stressor is due to service in Germany when his unit came to a sudden stop when tanks from another country were aimed at them, noting that his unit was in Germany approximately from January 6, 1986 to February 26, 1986. His attorney in October 2019 submitted an Associated Press article dated January 11, 1986 that notes that troops from the Veteran’s unit,1st Infantry Division from Fort Riley, Kansas, were among the joint troops from several other US-based institutions for Reforger exercises in Germany that month. Thus, an attempt needs to be made to corroborate the in-service stressor with the Joint Services Records Research Center (JSRRC). In February 2021 the Veteran also submitted another stressor statement contending that during basic training in Fort Knox, Kentucky he was sexually assaulted by another solder including while showering and in the supply room. A week later this same soldier cut his wrist and was trying to commit suicide. Where a stressor related to PTSD involves a personal assault, VA has certain additional notice and development duties to the claimant. The record does not show that the Veteran was advised of alternative sources of evidence denoted under 38 C.F.R. § 3.304(f)(5). Consequently, the Veteran must be advised of these provisions. See Bradford v. Nicholson, 20 Vet. App. 200, 205-06 (2006); see also Gallegos v. Peake, 22 Vet. App. 329, 336 (2008). Afterwards, the Veteran should be afforded a VA examination to determine the nature and etiology of any psychiatric disorder. The Board notes that the Veteran’s service treatment records are unavailable. In such a situation, VA has a heightened duty to assist him in developing his claim. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran has a diagnosis of sleep apnea. See, e.g. April 2009 VA treatment record. As discussed above, the Veteran’s service buddy in a statement in February 2021 reported that the Veteran had symptoms of sleep apnea during service to include breathing problems and snoring. Alternatively, the Veteran contends that his sleep apnea is secondary to his psychiatric disorder. See November 2017 Form 9 Appeal. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology of his sleep apnea. The Veteran also contends that his hypertension is secondary to his psychiatric disorder. See November 2017 Form 9 Appeal. Thus, the claim of entitlement to hypertension is inextricably intertwined with the service connection claim for PTSD and must be deferred pending AOJ resolution of these claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Lastly, VA treatment records in February 2010 show that the Veteran applied for benefits with the Social Security Administration (SSA). As these SSA records may be relevant to the issues being remanded herein, an attempt should be made to associate them with the file. The matters are REMANDED for the following action: 1. Obtain all the Veteran’s pertinent SSA records pertaining to the Veteran’s psychiatric disorder, sleep apnea, and hypertension. Document all requests for information as well as all responses in the claims file. 2. Afterwards, and after reviewing the record and a copy of this remand, undertake the development to attempt to corroborate the following stressor with JSRRC: the Veteran contends that his in-service PTSD stressor is due to service in Germany when his unit came to a sudden stop when tanks from another country were aimed at them, noting that his unit was in Germany approximately from January 6, 1986 to February 26, 1986. See, e.g. February 2021 statement. His attorney in October 2019 submitted an Associated Press article dated January 11, 1986 that notes that troops from the Veteran’s unit,1st Infantry Division from Fort Riley, Kansas, were among the joint troops from several other US-based institutions for Reforger exercises in Germany that month. 3. If it is determined that further attempts to obtain records via the JSRRC to verify the Veteran’s asserted stressor would be futile, the Veteran should be informed of this determination. See 38 C.F.R. § 3.159(e)(1). 4. Send the Veteran additional correspondence providing notification of the provisions of 38 C.F.R. § 3.304(f)(5) pertaining to the alternative sources of evidence which may be used to substantiate the occurrence of an in-service personal assault, in support of a claim for service connection for PTSD. Inform the Veteran of the opportunity to provide further evidence or information that pertains to the process of stressor verification. 5. Schedule the Veteran for a VA psychiatric examination. After reviewing the claims folder, conducting all necessary tests, and examining the Veteran the examiner is asked to do the following: a.) Identify/diagnose all current psychiatric disorders per the DSM V criteria, to include whether the Veteran meets the criteria for PTSD. b.) If the Veteran is diagnosed with PTSD per the DSM V criteria, the examiner must provide an opinion as to whether the PTSD symptoms are related to a verified inservice stressor. c.) The examiner also is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s PTSD is based on an in-service personal assault stressor. In formulating the opinion, the VA examiner is asked to address whether the Veteran exhibited behavior changes which may be indicative that a personal assault occurred. The requested opinion should take into consideration all relevant evidence following the incident, as well as the Veteran’s own assertions. d.) For any psychiatric disorder other than PTSD the examiner must opine whether it is at least as likely as not (50 percent or better probability) that it is related to an in-service injury, event, or disease. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 6. Afterwards obtain a VA opinion regarding the Veteran’s sleep apnea from an appropriate medical examiner or, if necessary, schedule the Veteran for a new examination. The examiner should be provided a copy of the claims file, to include all pertinent treatment records, and this remand. The examiner is asked to do the following: a.) Opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea is etiologically related to service. In rendering the opinion the examiner is asked to consider that the Veteran’s service buddy in a statement in February 2021 indicated that the Veteran during service had snoring and breathing problems while sleeping. b.) If the Veteran is service connected for a psychiatric disorder, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea was(a) caused or (b) aggravated by his psychiatric disorder. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 7. Afterwards undertake any additional development deemed necessary and afford the Veteran and his attorney a reasonable opportunity to respond. Then, readjudicate the Veteran’s claims of entitlement to service connection for an acquired psychiatric disorder to include PTSD; and entitlement to service connection for sleep apnea and hypertension, to include as secondary to a service-connected disorder. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.