Citation Nr: 21030360 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-13 918A DATE: May 18, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. Entitlement to service connection for sleep apnea, as secondary to the now service-connected acquired psychiatric disorder, is granted. Entitlement to service connection for a headache disorder, as secondary to the now service-connected acquired psychiatric disorder, is granted. REMANDED Entitlement to service connection for a left ankle disorder is remanded. Entitlement to an initial disability rating greater than 10 percent for right lateral collateral and deltoid ligament sprain (right ankle disorder) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the evidence shows the Veteran's acquired psychiatric disorder, to include major depressive disorder, was incurred in service. 2. Resolving reasonable doubt in favor of the Veteran, the evidence shows the Veteran's sleep apnea is caused or aggravated by his now service-connected acquired psychiatric disorder. 3. Resolving reasonable doubt in favor of the Veteran, the evidence shows the Veteran's headache disorder is caused or aggravated by his now service-connected acquired psychiatric disorder. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, to include major depressive disorder, have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for sleep apnea have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.310. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a headache disorder have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1990 to December 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2013 and November 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The May 2013 rating decision, in pertinent part, denied service connection for PTSD and for an acquired psychiatric condition other than PTSD. The November 2014 rating decision granted service connection for the right ankle disorder and assigned a 10 percent disability rating, and denied service connection for a left ankle disability, sleep apnea, and a headache disorder. In January 2019, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disorder other than PTSD, entitlement to service connection for PTSD, entitlement to service connection for a left ankle disorder, and entitlement to an initial disability rating greater than 10 percent for the right ankle disability to the Agency of Original Jurisdiction (AOJ) for additional development. The decision also denied service connection for sleep apnea and a headache disorder, but the Board vacated those denials when it became apparent a request to hold the record open for 90 days prior to issuing a decision had been submitted by the Veteran's representative but not associated with the claims file by the time the Board issued its decision. In June 2011, the Veteran filed a claim seeking service connection for a "mental health" disability. The AOJ split the claim the claim into two issues: service connection for an acquired psychiatric disorder other than PTSD and service connection for PTSD. To encompass any acquired psychiatric disorder and avoid confusion, the Board has recharacterized the issues as a single claim seeking service connection for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Acquired psychiatric disorder The Veteran's service treatment records (STRs), including an October 1991 Report of Mental Status evaluation, an October 1991 separation examination report, and an October 1991 Report of Medical History, are negative for psychiatric problems. Post-service treatment records show an assessment of an acquired psychiatric disorder as early as February 2004, when a VA physician assistant assessed probable depression. The Veteran referred himself for a mental health assessment by a private organization, R.R., in March 2011. He reported he had felt depressed for the last 13 years. A May 2011 private treatment record notes he described symptoms of depression and anxiety while serving in Desert Storm. A specific diagnosis was not provided but the social worker noted he needed help reducing the symptoms of PTSD and depression. The Veteran submitted an initial claim for an acquired psychiatric disorder in June 2011. A July 2011 private examination report shows a psychiatrist from R.R. diagnosed bipolar disorder, PTSD, and a history of alcohol abuse. The examiner, Dr. P.M., noted the Veteran had been bullied by his parents, had financial difficulties, and was unemployed. However, on a separate note, Dr. P.M. noted the Veteran's PTSD symptoms included nightmares and flashbacks of being bullied in the military. He was also startled by loud noises because they reminded him of Desert Storm. The Veteran was provided a VA psychiatric examination in May 2013. The examiner diagnosed anxiety disorder and a personality disorder and opined the anxiety disorder was not related to service. She explained that the Veteran's private treatment records referenced above showed that the Veteran reported feeling victimized by society and abused by his mother while growing up and that there were no notes referencing current symptoms related to military experiences. However, the examiner noted that while the Veteran's symptoms did not meet the full criteria for a PTSD diagnosis, the anxiety symptoms included sub-threshold PTSD symptoms. Significantly, the examiner indicated the Veteran's claimed stressors of witnessing a helicopter crash in Saudi Arabia and driving through a checkpoint manned by Saudis who drew their weapons were adequate to support a diagnosis of PTSD. Subsequently, the Veteran's representative submitted an October 2015 VA disability benefits questionnaire completed by Dr. H.H.G. After reviewing the claims file and interviewing the Veteran, Dr. H.H.G. diagnosed bipolar disorder and opined that the disability manifested during his military service, has continued uninterrupted to the present, and is also aggravated by the service-connected right ankle disability. Dr. H.H.G cited medical treatise literature noting an increased prevalence in psychiatric disability for service members versus the general public in support of her opinion. She also noted the Veteran's sister and friend submitted letters, which are not associated with the claims file, regarding the Veteran's mental health. She indicated they reported his personality change after he joined the military and that they observed his psychiatric symptoms increase in severity since his discharge. Dr. H.H.G. also noted the Veteran's DD Form 214 shows he was separated form service for "unsatisfactory performance." In June 2019, the Veteran was afforded another VA psychiatric examination. The examiner diagnosed major depressive disorder and found the Veteran's symptoms do not meet the criteria for a PTSD diagnosis. The examiner opined it is less likely than not that any psychiatric disorder diagnosed during the pendency of the appeal began during the Veteran's military service. The examiner explained that the Veteran's service records, including the mental status evaluation completed prior to the Veteran's discharge, are absent of any psychiatric complaints. He also noted there is no evidence that the Veteran was diagnosed with a psychotic disorder within a year of the leaving the military. The first episode of mental health care was nearly 20 years after his discharge from service. In January 2021, the Veteran submitted an October 2020 VA disability benefits questionnaire completed by Dr. K.G. After reviewing the claims file and interviewing the Veteran, Dr. K.G. diagnosed major depressive disorder with anxious distress and opined it more likely than not began during service. The examiner explained that the Veteran spent the majority of the interview discussing his military experiences, including his service in Saudi Arabia during Desert Storm, and reported he began struggling with anxiety and anger at that time. Dr. K.G. also noted that the Veteran reported he was not actually abused as a child. The Veteran speculated the prior references to child abuse were mischaracterizations of his reports that his mother was strict. Dr. K.G. also cited multiple VA treatment records that show the Veteran regularly referenced his military experiences while seeking treatment for the diagnosed depression. She also referenced a statement submitted by the Veteran's friend, E.M., who reported he has known the Veteran since childhood. In the letter, which was received with the examination report, E.M. described the Veteran as active, well-behaved, and very outgoing before he entered the service. But after his discharge he was very different. He was constantly on alert, hostile, and withdrawn. Significantly, E.M. stated he witnessed the Veteran have a panic attack while watching fireworks. Accordingly, the record shows that the Veteran has been diagnosed with multiple acquired psychiatric disorders, including major depressive disorder. Regarding an in-service event, the record demonstrates the Veteran was deployed in a location where hostile military or terrorist activity was known to occur. The Veteran has consistently and credibly testified he experienced traumatic events while deployed in Southwest Asia during Desert Storm. He has also consistently reported he felt bullied and mistreated by his superiors. With respect to a nexus between the acquired psychiatric disorder, including major depressive disorder, and service, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims (Court) has stated that the probative value of a medical opinion is based on the expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In favor of finding a nexus are Dr. P.M.'s July 2011 evaluation, the October 2015 VA disability benefits questionnaire completed by Dr. H.H.G., and Dr. K.G.'s January 2021 examination report. The Board affords relatively little probative weight to Dr. H.H.G.'s opinion because it fails to adequately address the Veteran's case specifically. However, Dr. P.M. diagnosed psychiatric disorders related to the Veteran's service after meeting him with on multiple occasions and referencing specific in-service incidents. Dr. K.G. provided a thorough rationale in favor of finding nexus between the acquired psychiatric disorder and service. She referenced the Veteran's VA treatment records, prior examination reports, and statements from the Veteran and E.M. For these reasons the Board assigns great probative weight to these opinions stating that the Veteran's current acquired psychiatric disorder, including major depressive disorder, is related to his service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The evidence against finding a nexus includes the May 2013 and June 2019 VA examination reports. Significantly, however, the May 2013 VA examiner provided contradictory findings. While she opined the anxiety disorder was not related to service, she also found the Veteran's symptoms met some of the criteria for a PTSD diagnosis and noted his stressors included in-service events. The June 2019 VA examiner provided a thorough rationale in support of the findings, including references to VA treatment records, but did not address the fact that the VA treatment records show the Veteran regularly referenced his military experiences while seeking treatment for the diagnosed depression. For these reasons, the Board affords relatively little probative weight to these opinions. See id. The Board therefore finds that the evidence is at least in equipoise as to whether the criteria for entitlement to service connection have been met. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Sleep apnea and headache disorder The Veteran asserts the now service-connected acquired psychiatric disorder caused or aggravated his sleep apnea and headache disorder. The Board notes at the outset that the record does not reflect sleep apnea or a headache disorder manifested during service or are otherwise directly related to service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Thus, his claims are for secondary service connection. Service connection may be established on a secondary basis for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. With respect to a nexus between sleep apnea and the now service-connected psychiatric disorder, in January 2019 the Veteran's representative submitted a January 2019 disability benefits questionnaire completed by Dr. M.B. After reviewing the record and interviewing the Veteran, Dr. M.B. opined the Veteran's sleep apnea is more likely than not caused by and permanently aggravated by his psychological distress, including anxiety and depression. Dr. M.B. noted it is well documented in the medical community that psychological impairments, including depression, contribute to the development and aggravation of sleep apnea. She cited medical treatise literature in support of this assertion. Dr. M.B. also noted the Veteran reported he was unable to use his continuous positive airway pressure (CPAP) device two to three nights a week because of the anxiety and panic attacks he experiences due to the psychiatric disorder. With respect to a nexus between the headache disorder and the now service-connected psychiatric disorder, in January 2019 the Veteran's representative submitted a January 2019 disability benefits questionnaire completed by Dr. M.B. After reviewing the record and interviewing the Veteran, Dr. M.B. opined the Veteran's headaches are more likely than not caused by and permanently aggravated by his psychological distress, including anxiety and depression. Dr. M.B. noted it is well documented in the medical community that psychological impairments have significant, positive effect on the development or aggravation of headaches. She cited medical treatise literature in support of this assertion. Dr. M.B. also noted post-service treatment records indicate that the Veteran experiences sleep difficulties due to the now service-connected psychiatric disorder and that the Veteran reported he often wakes up with a headache due to those sleep difficulties. As Dr. M.B. reviewed the claims file, interviewed the Veteran, and provided reasoned explanations for finding the sleep apnea and headache disorder were caused or aggravated by the service-connected psychiatric disorder, the Board assigns great probative weight to these opinions. See Nieves-Rodriguez, 22 Vet. App. at 295. Notably, there are no contrary medical opinions of record. The Board acknowledges the June 2019 PTSD VA examiner opined the Veteran's sleep difficulties did not warrant a psychiatric diagnosis, but he was not specifically addressing any relationship between the psychiatric disorder and the diagnosed sleep apnea. In light of the above and resolving all reasonable doubt in favor of the Veteran, service connection for sleep apnea and a headache disorder secondary to the Veteran's now service-connected acquired psychiatric disorder is granted. REASONS FOR REMAND 1. Right ankle disability When a disability of the joints is evaluated based on limitation of motion, examination findings must be consistent with the holdings in DeLuca, Mitchell, Correia, and Sharp. DeLuca v. Brown, 8 Vet. App. 202 (1995) (examiners must contemplate additional functional loss due to weakness, fatigability, incoordination, or painful motion); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (pain may result in functional loss if it limits the ability to perform normal working movements, even if present only on repetitive motion or during a flare-up); Correia v. McDonald, 28 Vet. App. 158 (2016) (when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). In the January 2019 Remand, the Board explained that a new VA examination was necessary to properly assess the current severity of the Veteran's service-connected right ankle disability because the September 2014 and May 2016 examiners' findings were inconsistent with the holding in Correia. Unfortunately, the May 2019 VA ankle examination is not consistent with the holding in Sharp because the examiner noted the Veteran's report of flare-ups, but failed to provide sufficient information regarding their frequency, severity, and duration. The Board acknowledges the examiner indicated there was no additional functional loss during the Veteran's flare-ups, but he did not explain how additional pain would not cause additional functional loss when he indicated the limitation of motion of the right ankle documented in the examination report was itself caused by pain. He specifically noted the pain witnessed on examination caused functional loss and that the examination was not conducted during a flare-up. Accordingly, the Veteran must be afforded a new VA examination to correct the deficiencies noted above. 2. Left ankle disability. In the January 2019 Remand, the Board explained that a new VA examination was necessary to determine the nature and etiology of a left ankle disorder because there was conflicting evidence regarding whether the Veteran had a left ankle disability and, if so, whether it was related to service. In a May 2019 opinion, the VA ankle examiner opined the diagnosed left ankle degenerative arthritis was not secondary to the service-connected right ankle disability, noting there was no objective medical evidence of "permanent aggravation." In Ward, the Court held "any incremental increase in disability and any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence" constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Although the Board is unsure why the examiner provided a secondary service connection opinion, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given that the May 2019 examiner used an improper definition of "aggravation" in his opinion, remand is required to adequately address the nature and etiology of the Veteran's left ankle disorder. The matters are REMANDED for the following action: Schedule the Veteran for a VA ankle examination to determine the current nature and etiology of the left ankle disorder as well as the current severity of the Veteran's service-connected right ankle disorder. The claims file should be made available to and reviewed by the examiner. (Continued on the next page) The examiner should opine whether it is at least as likely as not (50 percent or greater possibility) the Veteran's left ankle disorder is proximately due to or aggravated by his service-connected right ankle disability. Regarding the right ankle disability, the AOJ is advised that, although the May 2019 examiner documented the Veteran's description of flare-ups, the examiner did not adequately describe the severity, frequency, duration, and resulting functional loss experienced during those flare-ups. The examiner also failed to estimate any additional range of motion loss due to the flare-ups after finding pain limited motion during the examination and that the flare-ups, which did not occur during the examination, caused increased pain. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.