Citation Nr: 21040386 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-66 470 DATE: July 3, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for major depressive disorder (MDD) is granted. New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. To this extent only the claim is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's PTSD is etiologically related to fear of hostile military or terrorist activity during his active service. 2. The Veteran's MDD is secondary to his service-connected PTSD. 3. Evidence received since the January 2016 rating decision is new and relates to an unestablished fact necessary to substantiate the Veteran's claim for entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for MDD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. New and material evidence having been received, the claim for entitlement to service connection for a psychiatric disorder is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1988 to July 1998. This matter comes before the Board of Veterans Appeals (Board) on appeal from September 2013 and February 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The February 2018 decision denied service connection for sleep apnea and denied an increased rating for hypertension. In his March 2020 Form 9, Appeal to Board of Veterans Appeals, the Veteran appealed this decision only in regards to sleep apnea; the issue of an increased rating for hypertension is not before the Board. Entitlement to service connection for PTSD is granted Generally, entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For PTSD, service connection requires the showing of three elements: (1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. In June 2013, the Veteran underwent a VA examination for his claimed PTSD. The examining psychiatrist confirmed diagnoses of PTSD, major depressive disorder (MDD), alcohol dependence, and polysubstance dependence. The Veteran's VA treatment records also indicate a diagnosis of PTSD. Therefore, the first element of service connection for PTSD has been met. For the second element, lay testimony alone is typically not sufficient to establish that a stressor occurred; it must be corroborated by "credible supporting evidence." Cohen v. Brown, 10 Vet. App. 128, 140 (1997). However, there are four circumstances in which lay testimony alone may be sufficient: 1) when PTSD is diagnosed in service with stressor related to that service; 2) when the Veteran is considered a "combat veteran" under 38 U.S.C. § 1154 with stressor related to combat; 3) when the stressor is related to fear of hostile military or terrorist activity; and 4) when the veteran is a prisoner-of-war under 38 C.F.R. § 3.1(y) with stressor related to prisoner-of-war experience. See 38 C.F.R. § 3.304(f). If a PTSD claim is based on a veteran's fear of hostile military or terrorist activity, then lay testimony is sufficient to corroborate the existence of the stressor if (1) a 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;" (2) the psychiatrist or psychologist's findings are not contradicted by "clear and convincing evidence;" and (3) "the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service." 38 C.F.R. § 3.304(f)(3). Here, the Veteran claims PTSD based on three reported stressors that occurred between February and March of 1991, while he was stationed in the Persian Gulf region. First, the Veteran claims that a missile struck a building he and his unit had been in, less than 2 hours after they left; in an October 2012 statement, he described having "terrifying thoughts and dreams" of himself and his unit being killed, had they been delayed in leaving the building. Second, the Veteran described being part of a convoy traveling through an area known to be full of land mines and cluster bombs. Third, he described having a friend who ran over a mine in a tank and was seriously injured. The June 2013 VA examiner found each of these reported stressors adequate to support a diagnosis of PTSD stemming from fear of hostile military or terrorist activity, and there is no evidence in the record to contradict this finding. The question of whether these claimed stressors are "consistent with the places, types, and circumstances of the Veteran's service," however, is more complicated. The Veteran testified multiple times (most recently in his April 2021 hearing) that his battalion was sent to Southwest Asia (first Kuwait, then Iraq) from December 1990 to either June or July 1991. The RO initially denied the Veteran's claim for PTSD because his available service records do not document that he was ever stationed in Southwest Asia, only Germany and the United States. To counter this, the Veteran submitted pay records showing that he received danger pay from January 1991 to May 1991, asserting that this was due to his deployment to a combat zone during those months. The copies of the Veteran's service records in the claims file are known to be incompletefor example, his separation medical examination is missing from his service treatment records, despite VA's efforts to locate it. The records on file do not make it clear where the Veteran was stationed from January 1991 to May 1991, or why he was receiving danger pay during that period. However, the Veteran's service treatment records (STRs) contain some evidence that tends to support his testimony that he was sent to a combat zone in Southwest Asia. A July 1992 note in the Veteran's STRs states that from February 1991 to March 1991 he was prescribed pyridostigmine bromide, a medication used during the Gulf War as a pretreatment to protect military personnel from nerve agent attacks. The same note states that from March 1991 to May 1991, the Veteran was being treated with chloroquine, an anti-malarial drug. The Veteran's immunization record also shows that he received a typhoid vaccination in November 1990, a month before he was allegedly sent to Southwest Asia. The fact that the Veteran was given these medications (under circumstances routine enough that medical providers did not bother to note why) suggests that he was indeed stationed somewhere other than the United States and Germany in the first half of 1991. Taking this evidence alongside the Veteran's pay records and his own testimony, and affording him all benefit of the doubt, the Board finds that he was stationed in Southwest Asia from at least January 1991 to May 1991, and that his reported stressors are therefore consistent with the places, types, and circumstances of his military service. The June 2013 VA examination found the Veteran's PTSD to be secondary to his service in Iraq. The examiner noted the Veteran's recurring nightmares about his service, his hypervigilance, and his own description of how his stressors had impacted him. The examiner also reviewed the claims file, and cited letters from family and friends stating that the Veteran's personality had changed "considerably" since his return from Iraq. As the June 2013 examiner's opinion is based on an examination of the Veteran and full review of the claims file, and is supported by adequate rationale, the Board finds that it merits probative weight. Based on the above, entitlement to service connection for PTSD is granted. Entitlement to service connection for MDD secondary to PTSD is granted Service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability; this is known as "secondary service connection." 38 C.F.R. § 3.310(a). Entitlement to service connection on a secondary basis requires (1) evidence of a current non-service-connected disability; (2) evidence of a separate service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current non-service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The July 2013 VA examiner diagnosed the Veteran with MDD in addition to PTSD, and an MDD diagnosis is also repeatedly referenced in the Veteran's treatment records. Therefore, the first element of secondary service connection is met. The Veteran has been granted service connection for PTSD; the second element of secondary service connection has also been met. The July 2013 VA examination, discussed in the previous section, concluded that the Veteran's MDD was "secondary to the posttraumatic stress symptomatology." As the June 2013 examiner's opinion is based on an examination of the Veteran and full review of the claims file, the Board finds that it merits probative weight. Based on the above, entitlement to service connection for MDD is granted. New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. The Board must determine whether new and material evidence has been presented before it can reopen a claim. 38 C.F.R. § 20.1105. The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered, regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). A January 2016 rating decision by the RO found that the Veteran was not entitled to service connection for sleep apnea. The Veteran filed a Notice of Disagreement (NOD) in February 2016, requesting de novo review by a Decision Review Officer (DRO). A Statement of the Case (SOC) was issued in July 2017, again denying the claim. The Veteran did not file a substantive appeal within 60 days of receiving the SOC; thus, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.302, 20.1103. In January 2018, the Veteran filed a supplemental claim for sleep apnea; in February 2018, the RO denied the claim to reopen, finding that no new and material evidence was submitted. The Veteran filed a NOD within one year (in April 2018) and then submitted a buddy statement that recalled the Veteran had "abnormal snoring and an increase of noise" during service, and was monitored by medical personnel during field exercises because of it. This evidence is both new and relates to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156. Therefore, the evidence is new and material, and the claim of entitlement to service connection for sleep apnea is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Veteran contends that his sleep apnea is related to his military service, either directly (having had its onset during active service) or on a secondary basis (being caused or aggravated by his service-connected PTSD). The Board notes that the Veteran was never provided a VA examination for his claimed sleep apnea. VA's duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Specifically, a medical examination is necessary if the claims file does not contain sufficient evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for this third requirement, finding a potential link between a current disability and service, is low. Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006); McLendon, 20 Vet. App. at 83. A review of the Veteran's medical records indicates a current diagnosis of obstructive sleep apnea (OSA). The Veteran was diagnosed with "likely" OSA in July 2014, and a diagnosis of "moderate to severe OSA" was confirmed with a sleep study in November 2016. VA medical records show continued treatment for OSA following diagnosis. The Veteran is service-connected for PTSD, MDD, and hypertension; in his February 2016 NOD, he said that a VA psychiatrist told him that sleep apnea is "common with persons who have PTSD." Buddy statements submitted in January 2019 and May 2021 indicate that the Veteran began snoring heavily and exhibiting abnormal nighttime breathing patterns during his active service. In his April 2021 Board hearing, the Veteran said he was first told about his loud snoring during field exercises in the Army. Based on the above, the Board finds that the Veteran has a diagnosis of sleep apnea, that he suffered an event, injury, or disease in service, and that there is enough evidence of a link between the Veteran's sleep apnea and his in-service nighttime breathing problems (as well as between his sleep apnea and his service-connected psychiatric disorders) to entitle him to a VA examination. The matter is REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's obstructive sleep apnea. If the clinician believes an in-person or telehealth examination is necessary, one should be scheduled. After reviewing the entire claims file, the examiner should answer the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was incurred during active duty service, or caused by any event, injury, or disease that happened during active service? The opinion should specifically address testimony from the Veteran and other lay witnesses, including the "buddy statements" submitted in January 2019 and May 2021, and the April 2021 hearing transcript. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by a service-connected disability, such as PTSD or hypertension? (c) If the Veteran's sleep apnea is unrelated to his active duty service, what is its likely etiology? (Continued on the next page) A complete and fully explanatory rationale must be provided for any opinion offered, citing any record evidence or medical literature relied upon. If an opinion cannot be rendered without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.