Citation Nr: 21015500 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 01-09 827A DATE: March 17, 2021 REMANDED The issue of service connection for a psychiatric disorder, to include a personality disorder, is remanded. The issue of service connection for an anterior communicating artery (ACoA) aneurysm status post craniotomy is remanded. The issue of service connection for cognitive deficits and dementia, claimed as due to an ACoA aneurysm status post craniotomy, is remanded. The issue of service connection for headaches is remanded. The issue of service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1974 to February 1987. He died in February 2016. Prior to his death, he had been adjudicated incompetent for Department of Veterans Affairs (VA) purposes, and his spouse was appointed as his fiduciary. Upon the Veteran’s death, in February 2016, the Veteran’s surviving spouse requested to be substituted as the appellant for purposes of processing the pending appeals to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. She has been properly substituted as the appellant in this case. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2000 rating decision, which denied service connection for an aneurysm status post craniotomy; an October 2001 rating decision, which denied service connection for dementia and implicitly denied service connection for headaches; and a May 2003 rating decision, which denied service connection for a psychiatric disorder and obstructive sleep apnea. In March 2008, the appellant testified at a Board hearing. In December 2009, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. The Board remanded the appeal again in November 2011 because the appellant elected to testify at a new hearing after being notified that the Veterans Law Judge who conducted the March 2008 hearing was no longer with the Board. In March 2012, the Veteran and appellant testified at another Board hearing. Transcripts of both hearings are associated with the claims file. The Board remanded the remaining issues on appeal to the AOJ in November 2012, August 2017, and July 2020. 1. The issue of service connection for a psychiatric disorder, to include a personality disorder, is remanded. The Board must remand the appeal to the AOJ for compliance with the October 2020 Remand directive to attempt to obtain in-service mental health records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The prior Remand detailed that the Veteran’s service treatment records documented that he underwent psychiatric testing and evaluation and he may have received counseling or intervention for alcohol and/or marital problems; however, the actual records of such testing or evaluation were not associated with the claims file. In July 2020, the AOJ requested the Veteran’s “complete medical/dental records and entire personnel file” from the National Personnel Records Center (NPRC). It appears that the Veteran’s complete service personnel records were obtained. Unfortunately, there is no indication that the AOJ requested in-service mental health records, which are not included in “service treatment records.” The AOJ should request the Veteran’s in-service mental health records following the procedures for requesting such records. After the mental health service treatment records are obtained, the AOJ should obtain a medical opinion to determine whether the Veteran had a psychiatric disorder that began during military service or was related to military service, or whether any psychiatric disorder was superimposed upon a personality disorder. To assist the reviewing psychologist or psychiatrist, a brief summary of the Veteran’s (and appellant’s) contentions and pertinent medical evidence is included herein. In September 2002, VA received the Veteran’s claim of service connection for “all mental disorders, to include but not limited to, personality disorders.” Prior to receipt of the claim, the appellant reported in July 2000 correspondence that since the Veteran’s May 1993 craniotomy to repair a ruptured aneurysm, he had “suffered with chronic headaches, memory loss, blank spells, and more recently has had mood swings, irritability, problems with concentration.” In January 2001 correspondence signed by the Veteran and appellant, the appellant reported the Veteran had been evaluated by psychiatrists during service, who told him he was violent and had violent tendencies. The appellant believed the Veteran had psychiatric and headache symptoms in service that were “indications that an underlying condition existed previously to the actual aneurysm presenting itself.” In March 2004 correspondence, the Veteran’s sister, B.P., who identified herself as a licensed practical nurse (LPN), reported that since 1974, the Veteran had complained of severe headaches and had increasingly become more forgetful with moderate to severe mood swings. She believed his “aneurysm started then.” In March 2005, the appellant and/or Veteran asserted that service connection was warranted for a mental disorder superimposed upon a personality disorder, citing a service treatment record in which an examiner from a mental health clinic could not rule out a personality disorder. The Veteran’s service treatment records reflect he was unable to attend an appointment in March 1978 at the mental health clinic; however, his wife (the appellant) attended. In January 1979, the mental health clinic administered a standard battery of psychiatric tests, which were “suggestive of defensiveness, rebelliousness, and impulsivity.” The examiner could not rule out a personality disorder. A record several days later indicated that a mental health clinician agreed not to enter the Veteran into a rehabilitation program because he stated he would not “be involved in this sort of incident again.” In May 1979, a clinical psychologist evaluated the Veteran at the request of the Veteran’s commander and reported that the evaluation indicated no psychiatric disorder. “Nor was there sufficient evidence warranting a C&B [diagnosis].” Finally, social worker notes from January and February 1984 indicate that the Veteran’s mental status was within normal limits, that “DWI school should be sufficient,” and that the Veteran was seen for a “domestic incident” described as an “isolated incident.” 2. The issue of service connection for an ACoA aneurysm status post craniotomy is remanded. In May 1993, the Veteran underwent a craniotomy to clip a large anterior communicating artery aneurysm. The appellant has variously asserted that the Veteran’s aneurysm was caused by an underlying medical problem claimed as service-connected, including hypertension; other heart disease; or bacterial, fungal, or viral infections. These claimed disabilities have been denied and are not service connected; however, she has also asserted that the Veteran’s headaches and psychiatric symptoms in service were manifestations of his aneurysm before it ruptured in May 1993. The AOJ previously obtained a medical opinion regarding the Veteran’s post-service headache disability and the headaches he experienced during military service. The AOJ, however, has not obtained a medical opinion as to whether any psychiatric signs or symptoms during military service were underlying symptoms of an aneurysm. Accordingly, the claim for service connection for an ACoA aneurysm status post craniotomy remains inextricably intertwined with the claim for a psychiatric disorder and must also be remanded. After the AOJ obtains any additional service treatment records related to psychiatric evaluation and/or treatment, the AOJ should obtain a medical opinion as to whether any signs or symptoms of psychiatric impairment in service represented symptoms of an unruptured aneurysm. 3. The issue of service connection for cognitive deficits and dementia, claimed as due to an ACoA aneurysm status post craniotomy, is remanded. The evidence of record documents that the Veteran’s cognitive deficits and dementia began in 1993 after his aneurysm status post craniotomy. The appellant has not asserted that his cognitive deficits or dementia began in service or are otherwise related to service. This claim remains inextricably intertwined with the claim for an ACoA aneurysm and must be remanded. 4. The issue of service connection for headaches is remanded. Competent medical evidence and credible lay evidence of record indicates that the Veteran’s chronic headaches began after his May 1993 aneurysm repair. Therefore, the claim of service connection for headaches is inextricably intertwined with the claim for an ACoA aneurysm and must be remanded. 5. The issue of service connection for obstructive sleep apnea is remanded. The appellant asserts that the Veteran had sleep apnea throughout his military service, stating he “was always snoring and snorting so loud.” In an April 2001 buddy statement, D.O., who served with the Veteran from 1984 to 1987, recalled that the Veteran “would take a lot of naps.” He stated that he kept in touch with the Veteran over the years, had seen a decline in his ability to function, and he was taking “a lot more naps than he did before.” He did not describe any other observations of the Veteran sleeping. The Veteran’s service treatment records are silent for complaints, diagnosis, or treatment for sleep apnea or sleep problems generally. Among post-service private and VA treatment records, the Veteran reported having increased sleep periods of up to 11 hours per day during March 2000 VA mental health visits. The examining psychologist attributed his increased sleeping to symptoms of depression. In January 2001, he complained, “All I do is eat and sleep.” A June 2001 psychiatry note reflects the appellant’s report that “maybe that Modafinil was working because all [the Veteran] does is sleep now.” The psychiatrist ordered a sleep study referral for symptoms that sounded like obstructive sleep apnea. A November 2001 sleep study confirmed the Veteran had obstructive sleep apnea. His weight at that time was recorded as 208 pounds and other contemporaneous records noted he was obese. In comparison, an October 1996 private treatment note recorded his weight as 158 pounds, representing a 50-pound weight gain in five years. In October 2020, a fee-basis physician reviewed the Veteran’s claims file and opined that it was at least as likely as not that the Veteran’s obstructive sleep apnea, which was diagnosed in November 2001, was incurred in or caused by his military service. In support of the conclusion, the physician noted that an April [2001] buddy statement attested to the Veteran taking lots of naps from 1984 to 1987; subsequent treatment records dated in March 2000 demonstrated increased sleepiness; and a November [2001] sleep study demonstrated sleep apnea. Based on these facts, the reviewing examiner believed that the obstructive sleep apnea diagnosed in 2001 likely represented a continuation of the same disease process. Unfortunately, the reviewing examiner did not provide an explanation or rationale as to how the Veteran’s in-service naps represented a disease process or address other risk factors for obstructive sleep apnea documented in the record such as the Veteran’s smoking history, uncontrolled hypertension, or 50-pound weight gain in the five years preceding the November 2001 diagnosis of sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The AOJ should an addendum medical opinion supported by an adequate rationale (whether the reviewing examiner’s opinion is favorable or unfavorable). The matters are REMANDED for the following action: 1. Following the procedures for requesting in-service mental health records, including the note to “input mental health as the alleged disease or injury,” obtain all records of in-service psychiatric evaluation and/or mental health treatment. 2. After the Veteran’s in-service mental health records are obtained, provide the electronic claims file and a complete copy of this Remand to a psychologist or psychiatrist to obtain a medical opinion. Following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disorder during the Veteran’s lifetime (other than cognitive impairment and dementia associated with a May 1993 aneurysm status post craniotomy) had its onset during military service or was otherwise related to military service; OR was superimposed upon a personality disorder. A detailed medical explanation must be provided for all opinions expressed. If the reviewing examiner is unable to provide the requested opinion without resorting to mere speculation, he or she should explain why this is so. 3. After the Veteran’s in-service mental health records are obtained, provide the electronic claims file and a complete copy of this Remand to an appropriate clinician to obtain a medical opinion regarding the onset and etiology of the Veteran’s anterior communicating artery aneurysm status post repair in May 1993. The reviewing examiner is advised that the appellant believes the Veteran had psychiatric problems in service that were indicative of an underlying aneurysm. In October 2017, a VA physician reviewed the Veteran’s claims file to provide an opinion regarding his in-service headaches and 1993 ruptured aneurysm. The physician cited medical literature from Up-to-Date, indicating that “[m]ost intracranial aneurysms are asymptomatic unless they rupture,” but “[s]ome unruptured aneurysms can become symptomatic with headache, visual acuity loss, cranial neuropathies, pyramidal tract dysfunction, and facial pain.” Finally, the physician observed that the Veteran had most of the risk factors for formation of an aneurysm, including nonservice-connected hypertension, history of smoking two packs of cigarettes per day for more than 50 years, alcohol consumption, and hypercholesterolemia, suggesting that his aneurysm was etiologically related to these factors. Considering this medical literature and following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any signs or symptoms of psychiatric impairment during the Veteran’s military service represented symptoms of an unruptured anterior communicating artery aneurysm. A detailed medical explanation must be provided for all opinions expressed. 4. Provide the Veteran’s entire electronic claims file, including a complete copy of this Remand, to an appropriate clinician to obtain a medical opinion regarding the onset and etiology of the Veteran’s obstructive sleep apnea, which was confirmed by a sleep study in November 2001. Following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s obstructive sleep apnea had its onset during military service or was otherwise medically related to disease or injury in military service. A detailed medical explanation must be provided for all opinions expressed. In providing the requested opinion, the reviewing examiner should consider (a) the April 2001 buddy statement describing the Veteran’s in-service naps; (b) the August 2003 statement by the Veteran’s surviving spouse that he “was always snoring [and] snorting so loud[ly]” throughout their marriage, including during military service; and (c) other risk factors for obstructive sleep apnea documented in the claims file such as the Veteran’s smoking history, uncontrolled hypertension, and 50-pound weight gain in the five years preceding the diagnosis of sleep apnea in November 2001. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.