Citation Nr: 22012809 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 16-53 387A DATE: March 7, 2022 REMANDED Entitlement to service connection for generalized anxiety disorder is remanded. The petition to reopen the previously denied service connection claim for sleep apnea, to include as secondary to generalized anxiety disorder, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from October 1977 to May 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2014 and June 2021 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. 1. Entitlement to service connection for generalized anxiety disorder is remanded. The Veteran contends that he has an anxiety disorder that is related to an in-service injury, event, or disease. A review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for an acquired psychiatric disorder. A December 1976 service entrance examination reported the Veteran's psychiatric system was normal. The Veteran noted that his father had previously had the Veteran committed to a hospital for three weeks due to his inability to get along with his father, but no psychiatric illnesses were found. A May 1981 reenlistment examination reported the Veteran's psychiatric system was normal. An April 1987 separation medical examination reported the Veteran's psychiatric system was normal. An April 1987 report of medical history documented the Veteran's report that he had no depression, excessive worry, or nervous trouble of any sort. A March 2013 private treatment record reported that the Veteran was diagnosed with anxiety disorder NOS, rule out social anxiety, and rule out Asperger syndrome. The Veteran reported he had social issues in the Navy and was discharged due to a complaint with a supervisor. He reported stressors as work-related issues and the death of a friend. An April 2014 VA psychology note reported the Veteran was diagnosed with autism, depression NOS, and anxiety. The Veteran reported that he was psychologically tormented by a sergeant in the Navy. He also reported being bullied and tormented by others during service. The Veteran was provided a VA mental disorders examination in October 2014. The Veteran was diagnosed with generalized anxiety disorder, autism spectrum disorder, and depressive disorder. The examiner reported the Veteran was inclined to attribute anxiety that he currently exhibits to his harassment on a Navy ship during his military service. However, it was reported that he does not reliably indicate expectations of a repetition of the kinds of harassment that he reports but is inclined more often to indicate that he has anxiety about any new or unknown situation where he expects to be subjected to questions that will result in confusion and performance anxiety at present. Thus, the examiner believed his anxiety seems more likely to be connected to his fears of performance, which may be consistent with an autism spectrum disorder. The examiner opined that "it cannot be said that his condition is likely to have been proximally caused by the Military, although it may have been 'aggravated' in the sense that he quite possibly could have been made a target of some harassment because of his odd behaviors." Although the examiner found that a certain amount of anxiety was undoubtedly caused by his sleep apnea and restless leg syndrome and the resulting harassment on his Navy ship, he concluded that it was at least as likely as not that the Veteran's generalized anxiety disorder developed over a long history of difficulty from his autism spectrum disorder. The Board finds the October 2014 opinion to be inadequate as the examiner failed to use the proper legal standard in expressing that "it cannot be said that his condition is likely to have been proximally caused by the Military." The general standard of proof in Veteran's benefits cases is "at least as likely or not," not what the examiner provided, which was that "it cannot be said that his condition is likely to have been proximally caused by the Military, although it may have been 'aggravated' in the sense that he quite possibly could have been made a target of some harassment because of his odd behaviors." The examiner's use of an incorrect standard of proof makes it impossible for the Board to determine if that equates to a less than a 50 percent probability. See Wise v. Shinseki, 26 Vet. App. 517, 530-31 (2014). Moreover, the examiner seemingly opined that the Veteran's generalized anxiety disorder pre-existed his active service, as he concluded that the disorder developed over a long history of difficulty from his autism spectrum disorder. However, as anxiety disorder was not noted upon entry to service, the Veteran is presumed sound upon entry unless clear and unmistakable evidence demonstrates that the disease existed prior to service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Here, the examiner opined that it was at least as likely as not that the Veteran's generalized anxiety disorder developed over a long history of difficulty from his autism spectrum disorder. However, the examiner did not address whether there was clear and unmistakable evidence that anxiety disorder existed prior to service. In the absence of clear and unmistakable evidence that anxiety disorder existed prior to service, the examiner must presume that the Veteran was sound upon entry and address the question of whether his anxiety disorder was caused by or incurred in service. Due to the deficiencies of the October 2014 medical opinion described above, remand is warranted to obtain an addendum opinion to address (1) whether there was clear and unmistakable evidence that the Veteran's anxiety disorder existed prior to service, and (2) whether it was at least as likely as not that the Veteran's anxiety disorder was caused by or incurred in service. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 2. The petition to reopen the previously denied service connection claim for sleep apnea, to include as secondary to generalized anxiety disorder, is remanded. The Board finds that a remand is necessary before a decision on the merits of the claim can be reached. The Veteran's claim for entitlement to service connection for sleep apnea was previously denied on the merits in August 2011. The claim was denied because the Veteran's service treatment records do not contain complaints, treatment, or diagnosis for this condition. The Veteran did not submit any new and material evidence or any notice of disagreement to that determination within one year of the August 2011 decision. Therefore, the August 2011 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In April 2014, the Veteran filed a service connection claim for sleep apnea secondary to his anxiety. This matter is on appeal from an October 2014 rating decision, which included a denial of entitlement to service connection for sleep apnea, as it was decided that the evidence submitted in support of the claim does not constitute new and material evidence. The Veteran was provided a VA examination in October 2014. The examiner noted that the VA examination request included a determination of whether the Veteran's sleep apnea was at least as likely as not related to his anxiety disorder. The examiner noted the following regarding the request: "I construe the second question [regarding service connection for sleep apnea] to be one of whether or not sleep apnea can be considered a cause for anxiety disorder." The Board notes that the examiner misconstrued the examination request, as the determination should have been whether the Veteran's anxiety disorder could be considered a proximate cause of the Veteran's sleep apnea. In providing his opinion, the examiner provided the following remarks: It appears quite possible that he may have received harassment in a shipboard environment, particularly if he had uncontrolled sleep apnea and restless leg syndrome. Almost certainly he was made miserable by his shipmates because of his behaviors and because he probably created problems getting sleep for them. It seems less likely than not, however, that his anxiety could have caused sleep apnea or his restless leg syndrome, although a certain amount of anxiety was undoubtedly caused by these conditions and the resulting harassment on the ship. The examiner's opinion is merely a conclusory statement, without a thorough rationale explaining why he concluded that the Veteran's sleep apnea was not caused by his anxiety disorder. A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Because this conclusory statement does not permit a fully informed evaluation of the Veteran's claim, the Board finds the opinion to be inadequate. Due to the deficiencies of the October 2014 medical opinion described above, remand is warranted to obtain an addendum opinion to address whether the Veteran's sleep apnea was proximately caused by his anxiety disorder. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Return the claims file, including a copy of this remand, to the VA examiner who conducted the October 2014 VA mental disorders examination, or to another appropriate psychiatrist or psychologist if that individual is unavailable, to provide addendum opinions regarding the etiology of the Veteran's acquired anxiety disorder and sleep apnea. The Veteran's claims file, to include a copy of this remand, must be made available to the examiner along with any other information the medical professional deems pertinent. If an additional examination is required for the examiner to sufficiently provide etiology opinions, a new examination should be afforded. 4. Following the review of the claims file and examination of the Veteran, if deemed necessary, the examiner is then requested to respond to the following: (a) Did the Veteran's currently diagnosed generalized anxiety disorder clearly and unmistakably preexist his active service? In providing this opinion, the clinician should consider the relevant evidence of record, including the Veteran's December 1976 and May 1981 entrance examinations that found his psychiatric system to be normal, and the Veteran's report at his April 1987 separation examination that he had no depression, excessive worry, or nervous trouble of any sort. (b) If the clinician determines that the Veteran's current anxiety disorder clearly and unmistakably preexisted service, he or she must opine whether it was clearly and unmistakably not aggravated (non-temporary increase in severity) by service beyond its natural progression. (c) If the clinician finds that the Veteran's current anxiety disorder did not clearly and unmistakably preexist service, he or she must opine whether it is at least as likely as not that the current anxiety disorder had its inception during the Veteran's period of active service or is otherwise causally related to an in-service event, injury, or disease. (d.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea was proximately caused by or a result of his anxiety disorder? (e.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea was aggravated (any increase in disability beyond the natural progression) by his anxiety disorder? (f.) If aggravation is found, the examiner is asked to state the baseline level of severity of his sleep apnea before the onset of aggravation, to discuss the earliest medical evidence establishing the current level of severity, and to discuss what level of increase in severity from the baseline was due to the natural progression of the sleep apnea and what level of increase was due to aggravation from his anxiety disorder. 5. The examiner should set forth all examination findings and a complete rationale for any opinion expressed should be provided. 6. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, Associate 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.