Citation Nr: 21022126 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-14 524 DATE: April 14, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to an acquired psychiatric disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1973 to July 1976 with additional service in the Reserves. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2020 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and service connection for obstructive sleep apnea. The Veteran subsequently appealed the February 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Remand (JMR), which vacated the February 2020 Board decision and remanded the appeal to the Board for further action consistent with the JMR.   1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD In the November 2020 JMR, the parties (the Veteran and the Secretary of VA) agreed that there was insufficient medical evidence to decide the Veteran’s claim and that the Board erred by failing to obtain a VA examination or medical opinion that reconciled the divergent medical diagnoses of record. In this regard, the parties noted that while the medical records showed the Veteran had been treated for PTSD since September 2015, the May 2019 VA examiner opined that the Veteran’s examination results did not support a mental health diagnosis. Specifically, the May 2019 VA examiner noted that while the Veteran’s behaviors during the current VA examination invalidated any reasonable means of accurately determining the extent of her claimed psychiatric difficulties, her observed problematic evaluation behaviors did not mean that no psychiatric condition existed. Additionally, while the May 2019 VA examiner noted that the Veteran’s previous diagnosis of PTSD was conferred in a clinical context where different diagnostic guidelines apply and appeared to have been based predominantly on the Veteran’s subjectively reported symptoms, review of the evidence reflects that the Veteran was diagnosed with PTSD under the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria by both a VA treating psychologist and a VA treating psychiatrist. See December 2016 VA psychiatry note (reflecting that the treating psychiatrist discussed with the Veteran that her endorsed symptoms fit into the DSM-5 criteria to warrant a diagnosis of PTSD); September 2017 VA treatment record (reflecting that the Veteran meets Criterion A, B, C, D, and E symptoms). Thus, considering the conflicting medical diagnoses of record, the treatment records suggesting the Veteran may have psychiatric diagnoses in addition to and/or other than PTSD, and in accordance with the JMR, the Board finds that a remand is warranted so that the Veteran is afforded an examination to determine whether she has a diagnosis of PTSD, or any other psychiatric disability, that is related to service.   2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to an acquired psychiatric disorder The Veteran contends that her obstructive sleep apnea is associated with her psychiatric disorder. In support of this contention, her representative cited to online articles discussing a relationship between PTSD and sleep apnea. See August 2019 Appellate Brief. In the November 2020 JMR, the parties agreed that the Veteran’s service connection claim for obstructive sleep apnea should be remanded because this claim is inextricably intertwined with her service connection claim for an acquired psychiatric disorder, to include PTSD. These issues are inextricably intertwined because a decision on the remanded issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, could significantly impact a decision on the issue of entitlement to service connection for obstructive sleep apnea. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, in accordance with the JMPR, a remand of this claims is also warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated April 2019. 2. Then, schedule the Veteran for a VA examination with an appropriate medical professional, who has not previously provided an opinion on this matter, to address the Veteran’s claim for service connection for an acquired psychiatric disorder, to include PTSD, due to military sexual trauma. The need for an in-person examination is left to the discretion of the examiner. The claims file, to include a copy of this Remand, must be made available to and be thoroughly reviewed by the VA examiner. The examiner must respond to the following: (a) Identify/diagnose any psychiatric disorder, to include PTSD, that presently exists or that has existed during the appeal period. Reference is made to the VA treatment records that show a diagnosis of PTSD under the DSM-5 criteria. See December 2016 VA psychiatry note (reflecting that the treating psychiatrist discussed with the Veteran that her endorsed symptoms fit into the DSM-5 criteria to warrant a diagnosis of PTSD); September 2017 VA treatment record (reflecting that the Veteran meets Criterion A, B, C, D, and E symptoms). Reference is also made to the May 2019 VA opinion that the Veteran does not have a mental disorder that confirms to the DSM-5 criteria based upon the VA examination results as well as the VA treatment records also showing diagnoses of unspecified depressive disorder and unspecified trauma and stressor related disorder. See August 2015 through September 2017 VA treatment records. (b) If PTSD is not diagnosed, the examiner must provide an explanation for such a finding and MUST address how that finding reconciles with the Veteran’s VA treatment records reflecting a PTSD diagnosis under the DSM-5 criteria. (c) If PTSD is diagnosed, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s PTSD is related to service, including based upon the reported in-service personal assault/harassment stressors. In formulating the above opinion, the examiner is advised to consider the provisions of 38 C.F.R. § 3.304(f)(5) and that the opinion must reflect consideration of the lay statements describing the Veteran’s military experience of harassment, assault, and other traumatic experiences as well as the medical evidence of record. (d) For each identified non-PTSD psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such was incurred in or is otherwise related to service, to include the Veteran’s reported in-service personal assault/harassment stressors. The examiner is advised that the Veteran is competent to attest to factual matters of which she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for all opinions and the rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical finding. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.