Citation Nr: 21027901 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 18-37 491 DATE: May 7, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for sleep apnea, to include as a result of service-connected disability, is remanded. FINDING OF FACT The evidence of record demonstrates that the Veteran has PTSD as a result of fear of hostile of military terrorist action. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1959 to March 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in January 2017 and August 2017 by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2020, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. 1. Entitlement to service connection for an acquired psychiatric disorder, including PTSD. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). VA regulations provide that service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity"' means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho- physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). VA regulations state that mental disorder diagnoses are based upon the criteria provided in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association. 38 C.F.R. § 4.125(a). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, as a result of active service. In statements and testimony provided in support of his claim he described experiencing fear in October 1962 when his unit was placed on alert and boarded a ship for possible deployment to Cuba. It was asserted that although his ship never left Norfolk, Virginia, he had been afraid he might not have returned and that his spouse and newborn child would have been deported. An August 2016 VA examination included a diagnosis of PTSD. The examiner found the Veteran's symptoms were consistent with a diagnosis of PTSD and that the traumatic experience was his having waited on a ship outside Cuba expecting to be sent into nuclear war. A March 2021 VA medical opinion found it was at least as likely as not that the Veteran's PTSD was caused by his having been placed in a high threat situation with impending deployment to Cuba. It was noted the Veteran had no history of mental health problems prior to service and that he had been placed in a high threat situation with impending deployment to Cuba and feared for his life. Since that time, he had trouble sleeping, nightmares, avoidance, social isolation, loss of interest, angry outbursts, and used to heavily use alcohol to self-medicate his symptoms. He had also suffered several divorces and employment difficulties throughout his adult life. Based upon the evidence of record, the Board finds that the Veteran has PTSD as a result of fear of hostile of military terrorist action. The March 2021 VA examiner, a VA psychologist, confirmed that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. Although in its March 2021 supplemental statement of the case the Agency of Original Jurisdiction (AOJ) found that the evidence did not establish that a stressful experience occurred, the determination is presumed to have been based upon an October 2020 report indicating that Military Records Services was unable to research the request because a researchable stressor event/incident was not provided. There was no indication of any further VA effort to address the Veteran's claimed stressor. VA regulations provide in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, that lay testimony alone may establish the occurrence of the claimed in-service stressor. The claimed stressor is, to some extent, consistent with the available evidence as to the circumstances of the Veteran's service. Thus, after resolving all doubt in his favor, the Board finds that service connection for PTSD must be granted. (REMAND NEXT PAGE) REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as a result of service-connected disability, is remanded. Although this matter was previously remanded in April 2020, the Board finds that additional development is required for an adequate determination. The Veteran contends that he has sleep apnea as a result of his PTSD and in March 2020 provided a copy of medical literature addressing an increased risk for veterans with PTSD having obstructive sleep apnea. As the Veteran's sleep apnea claim has not been addressed by VA examination, further development is required. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his sleep apnea. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is a sleep apnea disability at least as likely as not related to service? Is a sleep apnea disability at least as likely as not proximately due to his service-connected PTSD disability? Is a sleep apnea disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected PTSD disability? Provide a rationale to support the opinion(s). The examiner should address the significance, if any, of the medical literature provided in support of the claim in March 2020. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.