Citation Nr: 22005489 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 17-22 398A DATE: February 2, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for obstructive sleep apnea, including as due to an acquired psychiatric disorder, is remanded. Entitlement to service connection for headaches, including as due to an acquired psychiatric disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1986 to May 1989. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from October 2016 and March 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded this appeal to the RO for further development. The Court has held that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). The record reflects diagnoses of mental disorders other than PTSD, to include major depressive disorder and alcohol use disorder. Having reviewed the record evidence, and in light of Clemons, the Board has recharacterized the claims on appeal as stated above. The Board next acknowledges that this appeal has been remanded previously. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). 1. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD, is remanded. The Veteran contends that his currently diagnosed acquired psychiatric disorders, to include major depressive disorder and PTSD, are the direct result of his in-service experience of military sexual trauma. In support of his claim, he relies upon lay statements (his own, his mother's, and his sister's), medical treatment records, and private medical evaluations. The Veteran's VA medical records show that on October 21, 2015, he was referred to the mental health service by his primary care physician with suspected PTSD. During the brief telephone triage conversation, he reported ongoing depression for years. He also admitted to being a victim of a military sexual trauma and wanted to work on that. On October 26, 2015, he walked into the VA mental health service and disclosed that he had passive suicidal ideation without plan or intent. During a brief consultation, he reported for the first time that he was the victim of military sexual trauma by disclosing that an officer forced him to engage in unwanted sexual acts. It was noted that he "endorsed several symptoms of PTSD secondary to this trauma." (The Board notes that there were many listed symptoms in this outpatient treatment note.) He reported that his symptoms began after the in-service sexual assault and he coped by staying busy with work. He reported that, since being injured and unable to work four years earlier, the severity of his symptoms had increased. In November 2015, the Veteran's symptoms were found to meet the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th edition) diagnostic criteria for major depressive disorder, PTSD, and alcohol use disorder. It was noted that within the previous three weeks he had disclosed for the first time that he was a victim of military sexual trauma. He reported that since the disclosure his symptoms of PTSD had worsened but they had been present to a lesser extent for the previous 20 years. In September 2016, the Veteran was afforded a VA examination for PTSD and his symptoms were found to meet the DSM-5 diagnostic criteria for PTSD and for moderate alcohol use disorder. The examiner opined that the Veteran's reported sleep impairment was undoubtedly due to a combination of PTSD, alcohol use, and sleep apnea. At this examination, the Veteran reported receiving a Captain's Mast while in service and being remanded to his ship for 30 days. As to the Veteran's PTSD stressor, he reported that he was raped by an officer while on shore leave in or around 1988. It also was noted that, in his statement in support of claim, he said that the event occurred in May 1987. In the February 2019 remand, the Board found that the September 2016 examiner provided a negative etiology opinion for the Veteran's acquired psychiatric disorders by relying solely upon the mismatch in dates of the in-service sexual assault. Specifically, the Board found that the September 2016 VA examiner's focus on a mismatch of dates to call into question the actual occurrence of the Veteran's sexual assault had done nothing to fully inform the Board on the merits of the claim. Having found the September 2016 VA examiner's opinion to be inadequate for VA adjudication purposes, the Board remanded this claim and directed the RO to schedule a new VA examination to determine the nature and etiology of the Veteran's acquired psychiatric disorders. The Veteran was afforded a VA examination in October 2019 in which the examiner concluded that he did not have a diagnosis of PTSD. The October 2019 VA examiner noted that previous diagnoses made in September 2016 were not supported by objective personality testing or structured clinical interview. The Board notes here that a review of the September 2016 VA examination, in which the Veteran was diagnosed with PTSD, reflects that he was evaluated fully and interviewed as part of the examination. The Board also notes here that there is nothing in the September 2016 examination report to suggest that this examination itself was insufficient although the Board recognizes that it previously found the September 2016 VA examiner's opinion insufficient. Thus, the October 2019 VA examiner's conclusion is based upon an inaccurate factual premise (i.e., that the September 2016 VA examination itself somehow was insufficient for adjudication purposes). See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value). Once VA provides an examination to a Veteran, it must ensure that the examination is adequate. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, the Board finds that the October 2019 VA examiner's nexus opinion is inadequate for VA adjudication purposes and a remand is necessary for another examination to address this matter. The Board also notes that the October 2019 VA examiner opined that it was at least as likely as not that the Veteran's persistent depressive disorder and panic disorder with agoraphobia was incurred in or caused by the in-service injury, event, or illness. Unfortunately, this examiner did not provide any rationale for the positive nexus opinion for these disorders. Thus, the Board finds that remand is necessary to obtain an adequate opinion with rationale which addresses this matter. 2. Entitlement to service connection for obstructive sleep apnea and for headaches is remanded. The Veteran essentially contends that his currently diagnosed obstructive sleep apnea and headaches were aggravated by his acquired psychiatric disorder. Given the Veteran's contentions, the Board finds that these claims are inextricably intertwined with the remanded claim of service connection for an acquired psychiatric disorder. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, adjudication of the claims of service connection for obstructive sleep apnea and for headaches must be deferred. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the nature and etiology of any acquired psychiatric disorder, to include major depressive disorder and PTSD. If possible, this examination should be conducted by a clinician other than the clinician(s) who provided medical opinions in September 2016 and in October 2019. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disorder, to include major depressive disorder or PTSD, is related to active service or any incident of service, including as due to military sexual trauma. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each acquired psychiatric disorder, to include major depressive disorder or PTSD, currently experienced by the Veteran, if appropriate. If PTSD is diagnosed, then the clinician is asked to identify the in-service stressor(s), to include military sexual trauma, which support this diagnosis. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for an acquired psychiatric disorder, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon opinions dated in September 2016 and in October 2019 in preparing his or her own opinion(s). 3. Review the completed examination report and determine whether it complies substantially with the terms of this REMAND. If not, please take appropriate corrective action. 4. Thereafter, readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.