Citation Nr: 21032837 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 18-35 176 DATE: May 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep apnea to include as secondary to an acquired psychiatric disorder to include PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1952 to January 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) by videoconference. A transcript of this proceeding is of record. During the October 2018 Board hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran's claim; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. With regard to the Veteran's acquired psychiatric disorder claim, the Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any psychiatric disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for an acquired psychiatric disorder and sleep apnea In January 2019, the Board denied the Veteran's acquired psychiatric disorder and sleep apnea claims. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In October 2020, the Court issued a Memorandum Decision that set aside the January 2019 Board decision and remanded the claims. The case has been returned to the Board for compliance with the directives contained in the October 2020 Memorandum Decision. The Court's October 2020 Memorandum Decision indicated that the Board erred by not determining whether, regarding the Veteran's acquired psychiatric disorder claim, the duty to assist warranted a medical examination. In this regard, the Court noted that the Board rejected the Veteran's lay testimony concerning his in-service stressor based on the lack of corroborating evidence, yet further noted that 38 C.F.R. § 3.304(f) specified that corroborating evidence is not necessary if a VA psychiatrist or psychologist: 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. Despite that provision, the Board had not provided the Veteran an examination and the Board did not determine whether an examination was warranted. Remand was required for the Board to properly address the duty to assist. The Veteran contends that he has an acquired psychiatric disorder that is related to his service. Specifically, the Veteran has reported multiple stressful incidents that caused his current acquired psychiatric disorder. These incidents consist of: 1) while onboard a troop transport to sea, he witnessed the aftermath of soldiers who were killed by a hatch cover falling on them; 2) during service in Japan in January 1953, while on a train, three men stuck their heads out a window and were decapitated by a telephone pole; 3) during service in Japan for a training exercise in 1955, he witnessed men who were smashed in between his ship and a landing craft; 4) during service in Fuji in 1955, a soldier was killed in an accident when operating a tank; 5) during service on Honshu Island in 1954, he witnessed eight men who were accidentally run over by a tank at night; 6) on Honshu Island, three women were accidentally killed by the Veteran who were cleaning up ammunition that he fired; and 7) in January 1953, while riding in a tank, he witnessed a soldier fall into a wheel and was killed. See, e.g., a statement from the Veteran dated September 2018; see also a statement from the Veteran dated June 2014. The Board notes that the Veteran's service personnel records document his service in Japan from August 1954 to September 1955. However, the Veteran's personnel records do not verify any of his reported stressors. Similarly, his available service treatment records do not document any mental health treatment or report of his claimed stressors. The Board also notes that in a private treatment record from Dr. R.A. dated October 2012, Dr. R.A. reported that the Veteran has received mental health treatment since the late 1960s. Additionally, the Veteran currently evidences depressive disorder. See, e.g., a VA treatment record dated September 2015. The Veteran has not been provided a VA examination to determine whether he has a current acquired psychiatric disorder that is related to his service to include his reported in-service stressors. In light of the foregoing to include the October 2020 Memorandum Decision, the Board finds that the Veteran should be provided such examination on remand. The Board is fully aware of the limitations of this section of the regulation. The Board notes that the claim of entitlement to service connection for sleep apnea is inextricably intertwined with the claim of service connection for an acquired psychiatric disorder. In other words, development of the acquired psychiatric disorder claim may impact the Veteran's sleep apnea claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. The Board further notes that if, and only if, it is determined that the Veteran's acquired psychiatric disorder is service connected, then a medical opinion should also be obtained as to whether the Veteran has sleep apnea that is caused or aggravated by the acquired psychiatric disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriately qualified medical professional to determine the etiology of his acquired psychiatric disorder. The claims folder should be made available to the examiner for review. Based on the review of the claims folder and examination of the Veteran, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has an acquired psychiatric disorder to include PTSD that is related to his service. In providing the requested opinion, the examiner should consider the Veteran's report of in-service stressors, specifically the following: 1) while onboard a troop transport to sea, he witnessed the aftermath of soldiers who were killed by a hatch cover falling on them; 2) during service in Japan in January 1953, while on a train, three men stuck their heads out a window and were decapitated by a telephone pole; 3) during service in Japan for a training exercise in 1955, he witnessed men who were smashed in between his ship and a landing craft; 4) during service in Fuji in 1955, a soldier was killed in an accident when operating a tank; 5) during service on Honshu Island in 1954, he witnessed eight men who were accidentally run over by a tank at night; 6) on Honshu Island, three women were accidentally killed by the Veteran who were cleaning up ammunition that he fired; and 7) in January 1953, while riding in a tank, he witnessed a soldier fall into a wheel and was killed. Additionally, if, and only if, it is determined that the Veteran has an acquired psychiatric disorder that is service connected, then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the Veteran has sleep apnea that is caused or aggravated by the acquired psychiatric disorder. If the examiner finds that the sleep apnea is aggravated by the acquired psychiatric disorder, then he/she should quantify the degree of aggravation, if possible. If the Veteran addresses combat, personal assault or terrorist/hostile activity such must be noted in the report. A rationale for all opinions expressed should be provided. 2. Review the claims file to ensure that all the foregoing requested development is completed, and arrange any additional development indicated. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.