Citation Nr: 21027986 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-11 223 DATE: May 10, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to sleep apnea is remanded. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on initial active duty for training from February 1989 to November 1989 and on active duty from September 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a June 2019 Board hearing. A transcript of the hearing is of record. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the Veteran's claim for service connection for depression pursuant to Clemons and recharacterized it as entitlement to service connection for an acquired psychiatric disability. The appeal was remanded by the Board to the AOJ for additional development in August 2020. On remand and in a March 2021 rating decision, the AOJ granted service connection for hypertension. As this grant represents a total grant of benefits sought on appeal as to this matter, it is no longer on appeal and before the Board for appellate review. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea began in service or in the alternative is a result of his depression. In August 2020, the Board remanded this matter in order to obtain a VA examination to determine the etiology of the Veteran's sleep apnea. The Board requested that the examiner address the Veteran's service treatment records that note treatment for upper respiratory infections in March 1989; the buddy statements in January 2015, that state the Veteran had severe snoring, sleep disruptions, and indigestion; and the Veteran's September 2015 statement, in which he stated he had sinusitis, bronchial infections, weight gain, and high blood pressure, and teeth grinding in service, which he claims are symptoms of his sleep apnea. In February 2021, the Veteran underwent a VA sleep apnea examination. The examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran had documented obesity and a history of obesity. Specifically, the examiner noted in April 2010 the Veteran had a BMI of 39. The examiner explained that according to the literature there is a linear correlation between obesity and sleep apnea. The examiner noted that in obese people, fat deposits in the upper respiratory tract narrow airway and there is a decrease in muscle activity in the region leading to hypoxic and apneic episodes ultimately resulting in sleep apnea. The examiner further opined the Veteran's sleep apnea is less likely than not related to the Veteran's psychiatric condition. The examiner reiterated his reasoning for a negative direct opinion and stated that sleep disordered breathing can be a sign of untreated sleep apnea, which is associated with worse symptoms of psychiatric conditions, but this would not necessarily result in the development of his sleep apnea. Therefore, given the Veteran's obesity, it is less likely that the Veteran's military service resulted in sleep apnea and less likely than not the Veteran's sleep apnea was aggravated by an underlying psychiatric disorder. The Board finds that an addendum medical opinion is required. First, the March 2021 examiner failed to address the Veteran's service treatment records noted by the Board and the statements by the Veteran and his fellow serviceman related to possible symptoms in service of sleep apnea. Second, the examiner's rationale as to why the Veteran's sleep apnea was not aggravated by any acquired psychiatric disorder merely explained that sleep apnea was did not develop from a psychiatric condition. However, the Board notes that aggravation is different from causation; and the examiner failed to provide a rationale as to why any acquired psychiatric disorder did not aggravate the Veteran's sleep apnea beyond the natural progression of the disorder. Thus, a remand is required in order to obtain an adequate medical opinion that addresses the Veteran's service treatment records and the Veteran's and his fellow service member statements about symptoms in service. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he has a current diagnosis of depression and it is etiologically related to his service, or in the alternative to his sleep apnea. In November 2017, VA treatment records note the Veteran had anger issues with possible depression. At a November 2017 initial mental health evaluation, a VA psychiatrist found the Veteran had unspecified disruptive, impulse control and conduct disorder; alcohol use disorder; and tobacco use disorder. At that time the Veteran deferred any mediation and indicated he would start therapy for anger management. The Veteran's VA treatment records do not indicate any follow up anger management or psychiatric treatment. VA treatment records indicate that the Veteran had depression screens in September 2017, September 2018, and October 2019, all of which were negative. In March 2021, the Veteran underwent VA psychiatric examination. The examiner found the Veteran did not have (or ever had) a mental disorder. The examiner found the Veteran did not meet the criteria for any claimed mental health conditions as delineated by the DSM-V. The examiner did not provide any rationale for her opinion. The Board finds that an addendum medical opinion is required. Although the VA examiner found the Veteran did not have a psychiatric disorder that conformed to the DSM-V criteria, the examiner did not provide any rationale for her opinion. Notably, the examiner failed to discuss the apparent diagnosis of unspecified disruptive, impulse control and conduct disorder in November 2017. As such the Board finds a remand is required. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The examiner must opine as to the following: (a.) Identify all current acquired psychiatric disorders, to include depression and unspecific disruptive, impulsive, and conduct disorder. i. If the examiner finds no DSM-V psychiatric disorder, then the examiner must explain why. (b.) Whether any diagnosed acquired psychiatric disorder is at least as likely as not related to an in-service injury, event, or disease. (c.) Whether any diagnosed acquired psychiatric disorder is at least as likely as not (1) proximately due to the Veteran's sleep apnea, or (2) aggravated beyond its natural progression by the Veteran's sleep apnea. i. The examiner must address the March 2021 VA sleep apnea examiner that noted untreated sleep apnea is associated with worse symptoms of psychiatric condition (d.) For each opinion provide, the examiner must provide a complete medical rationale. 2. Obtain an addendum medical opinion by an appropriate clinician to determine the nature and etiology of sleep apnea. The examiner must opine as to the following: (a.) Whether the Veteran's sleep apnea is at least as likely as not related to an in-service injury, event, or disease. The examiner must address the following: i. The Veteran's service treatment records that note treatment for upper respiratory infections in March 1989. ii. The buddy statements in January 2015, that state the Veteran had severe snoring, sleep disruptions, and indigestion. iii. The Veteran's September 2015 statement, in which he stated he had sinusitis, bronchial infections, weight gain, and high blood pressure, and teeth grinding in service, which he claims are symptoms of his sleep apnea. (b.) Whether the Veteran's diagnosed sleep apnea is at least as likely as not (1) proximately due to any diagnosed acquired psychiatric disorder, or (2) aggravated beyond its natural progression by any diagnosed acquired psychiatric disorder. (c.) For each opinion provide, the examiner must provide a complete medical rationale. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.