Citation Nr: 21029468 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-10 007 DATE: May 13, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a headache disorder, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for insomnia, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1985 to June 1989 with additional Reserve service. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a service-connected disability. The claim is remanded to obtain an adequate medical opinion. The March 2014 VA opinion is inadequate. That examiner provided a negative opinion as to whether the diagnosed major depressive disorder was caused by the Veteran's service connected bilateral knee disabilities, but did not address aggravation or direct service connection. Entitlement to service connection for a headache disorder, to include as secondary to a service-connected disability. The Board cannot make a fully-informed decision on the issue of service connection for a headache disorder, because while the Veteran has testified he experiences on-going migraine headaches, no VA examiner has opined whether the Veteran has a diagnosed headache disorder that is related to service or secondary to a service-connected disability. 38 C.F.R. § 3.159 (c)(4). Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. Entitlement to service connection for insomnia, to include as secondary to a service-connected disability. The claims are remanded as intertwined with the psychiatric claim being remanded because a decision on the that claim could significantly impact a decision on these claims. On March 2014 VA psychiatric examination, the examiner noted a diagnosis of insomnia that was secondary to his depression and noted that the manifestations of his major depressive disorder included chronic sleep impairment. The Veteran also asserted testified that his gagging woke himself up during his sleep. The Veteran also asserts that he has both insomnia and sleep apnea that could be secondary to a service-connected disability. On remand, an examination is necessary to determine if the Veteran has a separately diagnosed sleep disorder, to include sleep apnea, and if so whether it is related to a service-connected disability. On remand, steps should be taken to ensure that complete records are available. It does not appear that the record includes the Veteran's complete service treatment records for his period of active duty service from June 1985 to June 1989. While a November 2011 Formal Finding on the Unavailability of Service Treatment Records was issued, the memorandum listed that the records were unavailable for the period from June 16, 2003 to October 24, 2003. The Veteran does not claim and the record does not reflect that the Veteran had service during that period, and his service treatment records for the period from June 1985 to June 1989 are still outstanding. Accordingly, a remand is required to obtain them. The record also indicates that a headache disorder was treated during his service in the Reserves. The AOJ should attempt to verify the Veteran's period of active duty for training or inactive duty for training. Evidence indicates that there may be outstanding relevant VA treatment records. During the January 2021 hearing, the Veteran testified that has continued to receive VA treatment at a VA facility in Baltimore, Maryland for the previous two years, and had received treatment at several VA facilities during the period on appeal. The record only contains VA treatment through January 2018 and does not include records from a VA facility in Baltimore, Maryland. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Take all appropriate action to obtain the Veteran's complete service personnel records, to include all documents pertaining to his service in the United States Marine Corps Reserve. Verify all periods of service and related duty status, to include any service in the Marine Corps Reserve March 1990 to March 1991. Document all requests for information as well as all responses in the record. 2. After completion of the above, prepare a summary identifying all periods of service and related duty status. 3. Take all appropriate action to obtain the Veteran's complete service treatment records, to include documents pertaining to his active duty service in the Marine Corps from June 1985 to June 1989. Document all requests for information as well as all responses in the record. 4. Obtain the names and addresses of all medical care providers who treated the Veteran for psychiatric, headache, or sleep complaints since service not already associated with the record. After securing the necessary release, take all appropriate action to obtain these records, including copies of any outstanding VA treatment records at VA Medical Centers in Atlanta Georgia, Ann Arbor, Michigan, Norther California, Muscogee, Oklahoma, and Tulsa, Oklahoma; and any since January 2018, to include records at a VA facility in Baltimore, Maryland. 5. After completion of the above, schedule the Veteran for an examination (in person or via telehealth) to determine the nature and likely etiology of any diagnosed psychiatric disability. Copies of all pertinent records should be made available to the examiner for review. The examiner should answer the following: (a) Identify all acquired psychiatric disorders diagnosed since February 2012 to include major depressive disorder. (b) Is it at least as likely as not that any diagnosed psychiatric disorder was incurred in or is related to service. Why or why not? (c) If the answer to (b) is no, is it at least as likely as not that any diagnosed psychiatric disorder is (i) caused or (ii) aggravated by (defined as any increase in disability) any service-connected disability? Why or why not? The examiner should consider and discuss as necessary the Veteran's credible lay testimony that he began experiencing anxiety and depression symptoms during his active duty service and he has had continued symptomatology since his active duty service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 6. After the completion of (1), (2), and (3) schedule the Veteran for an examination (in person or via tele-health) with an appropriate clinician to determine the nature and likely etiology of any diagnosed headache disorder. Copies of all pertinent records must be made available to the examiner for review. The examiner should answer the following: (a) Identify all headache disorders diagnosed since February 2012. (b) Is it at least as likely as not that any diagnosed headache disorder is related to an in-service injury event, or disease during his active duty or ACDUTRA service, to include his December 1990 motor vehicle accident? Why or why not? If the answer is yes, the examiner should identify the date of onset; that is, which period of service. (c) Is it at least as likely as not that any diagnosed headache disorder was (i) caused or (ii) aggravated by (defined as any increase in disability) his service-connected disability? Why or why not? The examiner should consider and discuss as necessary the Veteran's credible lay testimony that he began experiencing headaches during his active duty service prior to his December 1990 motor vehicle accident and he has had continued symptomatology since his active duty service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 7. After the completion of (1), (2), (3), and (4), schedule the Veteran for an examination (in person or via tele-health) by an appropriate clinician to determine the nature and etiology of any diagnosed sleep disorder. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, the examiner should provide opinions as to the following: (a) Identify any diagnosed sleep disorder diagnosed at any point since February 2012, to include insomnia. The examiner should consider and discuss as necessary the Veteran's testimony of gagging and waking up during his sleep and diagnosis of insomnia and notation of chronic sleep impairment on the March 2014 VA psychiatric examination. (b) For each diagnosed sleep disorder, identify whether it is a manifestation or symptom of a diagnosed psychiatric disability. (c) For any separately diagnosed sleep disorder, is it (i) at least as likely as not related to an in-service injury, event, or disease; (ii) caused or (ii) aggravated by (defined as any increase in disability) his service-connected disability? The examiner should specifically consider and discuss as necessary the Veteran's lay testimony that he gags and wakes up during his sleep, that he began having sleep problems during his active duty service and he has had continued symptomatology since his active duty service, and the opinion of the March 2014 VA psychiatric examiner that his insomnia was secondary to his major depressive disorder. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 8. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.