Citation Nr: 21030357 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-53 417 DATE: May 18, 2021 REMANDED Entitlement to service connection for depression is remanded. Entitlement to service connection for anxiety condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1995 to September 2015. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 2016. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2021. A transcript of the hearing is of record. 1. Entitlement to service connection for depression. 2. Entitlement to service connection for anxiety condition. In June 2015, the Veteran filed a service-connection claim for, among other disorders, posttraumatic stress disorder (PTSD), sleep apnea, and insomnia. A rating decision of March 2016 granted service connection for sleep apnea with use of CPAP to include unspecified sleep-wake disorder claimed as insomnia. An evaluation of 50 percent, effective October 1, 2015, was established. Entitlement to PTSD was denied. In May 2016, the Veteran filed service-connection claims for an anxiety condition and for depression. A rating decision of June 2016 denied service connection for an anxiety condition and for depression. The Veteran appealed by filing a notice of disagreement (NOD) in March 2017 and VA Form 9 in October 2017. The scope of the claims includes any acquired psychiatric disorder that may reasonably be encompassed by the Veteran's description of the claims, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, because the Veteran is already service-connected for the psychiatric disorder of unspecified sleep-wake disorder, the claims of entitlement to service connection for depression and anxiety do not include a claim of entitlement to service connection for a sleep disorder. Claims based upon distinctly diagnosed diseases or injuries must be considered separate claims. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In this case, the denial of service-connection in March 2016 related to PTSD only, which is distinctly diagnosed from the Veteran's depression, anxiety, and sleep disorder. Accordingly, the Board considers the Veteran's claims of entitlement to service connection for depression and for anxiety to be distinct from the previously denied claim of entitlement to service connection for PTSD. Thus, the March 2016 denial of service connection for PTSD is not a prior, final decision as to the issue of entitlement to service connection for depression or anxiety, and new and material evidence is not required to consider those issues on the merits. 28 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In his hearing testimony and elsewhere in the record, the Veteran explained how he has experienced "some form of mental anxiety" from service to the present and attributes it to three events during service. First, in October 1996, the vessel on which he was stationed was hit by another Navy vessel, causing the Veteran to fall, from his third-level bunk to the floor. He hit his head on a rack. Two persons and objects fell on top of him. He was worried that the ship might sink. When communication could not be made with the bridge, a fellow service member began screaming, "They're dead!" Following this incident, the Veteran began experiencing anxiety and drowning nightmares. He self-medicated with alcohol. In a subsequent incident of January 2001, as described by the Veteran, his vessel had a soft grounding when it hit a sand dune. He was thrown into an upright post or bar in the berthing area. This incident recalled for the Veteran the earlier collision incident and reinforced his anxiety. The soft grounding caused immediate anxiety about possible capsizing. The third incident was the earthquake, tsunami, and Fukushima power plant accident in 2011 in Japan, where the Veteran was stationed at the time. His house shook, and there were aftershocks and a fear of radiation exposure. The Veteran alleges these in-service incidents caused anxiety and other symptoms beginning in service and recurrently to the present. As a layperson, he is competent to report his experienced symptoms, but he is not competent to diagnose a psychiatric disorder or to associate a psychiatric disorder with an event of service. See Layno v. Brown, 6 Vet. App. 465 (1994). In November 2015, the Veteran underwent a VA examination for PTSD. It was determined that he did not meet the DSM-5 criteria for a diagnosis of PTSD. The Veteran reported having had ongoing problems with sleep initiation and maintenance since his first sea deployment in 1996 aboard a guided missile cruiser. At that time, his sleep was regularly disrupted by changing shift work, constant loud noises from 24-hour operations, his anxieties about "getting everything right" in his assignments, and multiple incidents that reinforced his perception of the dangers of being aboard the ship (ship running aground, collision with another Navy vessel, and several non-fatal accidents to crewmates). The examiner diagnosed the Veteran with unspecified sleep-wake disorder. In the opinion of the November 2015 VA examiner, the Veteran's unspecified sleep-wake disorder is at least as likely as not due to his chronic obstructive sleep apnea, routine active duty stressors, and work-related sleep-wake cycle disruptions. Anxiety was noted to be a symptom that actively applies to the diagnosis of unspecified sleep-wake disorder. As noted above, the Veteran is already service-connected for the psychiatric disorder of unspecified sleep-wake disorder (claimed as insomnia). The Board notes that, although the March 2016 rating decision granted service connection for sleep apnea with use of CPAP to include unspecified sleep-wake disorder claimed as insomnia, the 50-percent initial rating assigned for that disability relates entirely to sleep apnea symptoms. There was no consideration given in the Reasons and Bases section of the rating decision to any impairment caused by the diagnosed sleep-wake disorder. The November 2015 VA examiner summarized the Veteran's occupational and social impairment due to the sleep-wake disorder as mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or as symptoms controlled by medication. A VA treatment record of August 2017 (mental health consult) included the following DSM-5 diagnoses: depressive disorder, anxiety disorder, and unspecified trauma and stressor-related disorder. A VA treatment record of July 2016 included diagnoses of adjustment disorder with mixed anxiety and depressive mood. The diagnostic impressions of a VA treatment record of May 2015 are unspecified anxiety disorder (R/O generalized anxiety disorder), unspecified depressive disorder, and unspecified sleep disorder. The Veteran has competently testified as to certain in-service events (summarized above) and his experienced symptoms of anxiety during and following service. The Board cannot make a fully-informed decision as to entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, because no VA examiner has opined as to the likelihood that one or more of the currently diagnosed psychiatric disorders (other than unspecified sleep-wake disorder) is related to a disease, injury, or event of service, or is caused or aggravated by a service-connected disability, to include obstructive sleep apnea. Accordingly, the Board will remand for a VA medical examination and nexus opinion. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matter is REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding and identified private medical records that are pertinent to the remanded issues and any outstanding VA treatment records. All efforts to obtain such records should be documented in the electronic claims folder. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder other than unspecified sleep-wake disorder at any time since the Veteran's claim was filed in May 2016, even if now resolved. The examiner must opine as to whether any such psychiatric disorder is at least as likely as not: a. Related to an in-service injury, disease, or event, to include the Veteran's competent account of anxiety first experienced during service; or b. Caused or aggravated beyond its natural progression by a service-connected disability, to include sleep apnea with use of CPAP to include unspecified sleep-wake disorder claimed as insomnia. If the Veteran's medical history indicates that the diagnosis of any mental disorder has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that "aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to, or the result of, a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is at least as likely as not, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. Notify the examiner that laypersons, such as the Veteran, are generally considered competent to attest to matters of first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner shall indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. [SIGNATURE ON NEXT PAGE] G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.