Citation Nr: 22013477 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-24 576 DATE: March 9, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD) with general anxiety is remanded. Entitlement to service connection for plantar fasciitis is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service with the United States Army from September 1971 to October 1973 and from October 1973 to February 1979. In his May 2018 substantive appeal, the Veteran requested a video conference hearing. In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. As a preliminary matter, the Board recognizes that the Veteran originally filed separate claims of entitlement to service connection for PTSD and MDD with generalized anxiety. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. As such, as reflected on the first page of this decision, the Veteran's claims have been rephrased as a single claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD and MDD with generalized anxiety. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD) with general anxiety is remanded. Although the further delay entailed by remand is regrettable, current adjudication of the Veteran's claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD and MDD with generalized anxiety. In October 2021, the Veteran testified at a Board hearing. Therein, he reported attending basic training at Fort Jackson, in Columbia, South Carolina. According to the Veteran, training exercises were conducted in a chaotic environment that included crawling through trenches in the presence of loud noises, yelling and live round-firing. He contends that a fellow soldier was killed during one of the exercises. An onset of anxiety and nightmares were reported following the incident. After basic training, the Veteran was deployed to Germany where his official duties included assembling nuclear weapons. His work was considered a matter of national security. Prior to returning home, the Veteran reported witnessing a car bombing in which a civilian was injured. Reportedly, he rendered initial aid. To manage stress, fear, and anxiety related to his experiences, the Veteran reported abuse of alcohol and smoking hash. During his second tour, the Veteran was stationed with the artillery group in Europe. He reports assembling rounds for the 8-inch Howitzer and 110 Self-propelled Howitzer. In retaliation for a disagreement, the Veteran states that his sergeant "set him up" for an article-15 reprimand. As a result, the Veteran lost his rank. Reportedly, the rationale included late arrivals to formation. To this day, the Veteran reports feeling triggered by anyone who resembles that sergeant. Post-service, the Veteran's initial engagement with psychiatric treatment and substance abuse occurred during the 1990s. He initially believed that psychiatric treatment was reserved for persons deemed clinically insane. However, at the urging of his mother, the Veteran met with a VA therapist and eventually engaged with narcotics anonymous and alcoholics anonymous. He was "in and out" of treatment for years before he began to "trust" the program. Suicidal ideations were reported to include dreams of lying on a railroad track. The Veteran continues to struggle with anger, fear, anxiety and depression. Oral medications were prescribed to treat his symptoms. The Veteran's wife also testified during the Board hearing. She states that they in 1994 and have married for 28 years. Over the years, she became aware of his struggles with alcohol, drugs, and impaired sleeping due to nightmares. A period of sobriety was reported during her pregnancy with their first child, a daughter. However, the Veteran suffered a relapse when the baby passed away from SIDS 9 months after birth. Five years later, they welcomed a son. Since the birth of their son in 2000, the Veteran has been sober. A history of verbal and physical abuse was reported however, a decline was acknowledged beginning after the Veteran became sober. Regrettably, the aggressive behaviors and suicidal ideations continued. Service treatment records confirm in-service treatment of depression, generalized fatigue, and sleep disturbance. In December 1978, the Veteran was evaluated for depressive symptoms with a poor mood, despite numerous counseling sessions. An article-15 occurred 6 months ago. The Veteran acknowledged being late to formation on two occasions. Post-service treatment records indicate that a current diagnosis of depressive disorder, not otherwise specified was noted in October 2013. Symptoms including depression, anxiety, and self-blame were documented in a mental health treatment noted, bearing the same date. On examination in March 2021, current diagnoses included major depressive disorder and a generalized anxiety disorder. Although the examiner acknowledged that service treatment records show possible depression in service, the symptoms were deemed situational. Post-service, there is no evidence of depression between 1979-1997, when the Veteran first entered treatment for alcoholism. Sobriety was achieved in 2000. Years later, in 2008, a diagnosis of depression was reported. Due to a lack of chronicity of depression, the examiner determined that it was less likely as not that the Veteran's current diagnosis of MDD and generalized anxiety disorder is causally related to situational depression in service more than 30 years earlier. Considering the above, the Board finds that an additional VA examination is required. Specifically, an opinion is needed which adequately addresses the Veteran's lay assertions regarding his onset of symptoms. In particular, the Board notes that the examiner concluded that in-service treatment for depression was situational and is not otherwise causally related to a subsequent diagnosis of depression years later. No explanation or supportive rationale was provided as to why the Veteran's in-service depression was deemed situational and otherwise unrelated to his post-service struggles with substance abuse and psychiatric symptoms. Moreover, the examiner failed to adequately address the Veteran's report of an onset of substance abuse, his struggles with trust or depression following the article-15 demotion in-service. Accordingly, a new etiological opinion is required. 2. Entitlement to service connection for plantar fasciitis is remanded. The Veteran contends that he is entitled to service connection for plantar fasciitis. During a Board hearing in October 2022, the Veteran reported problems with his feet dating back to active service. Specifically, he states that performance of his official duties required intensive physical activity, to include running and jumping. According to the Veteran, he was responsible for loading the M110 Self-propelled onto a track. While doing so, the track rolled over his foot. He sought in-service treatment and a diagnosis of an ingrown toenail was indicated. Post-service, he sought treatment for chronic foot pain. The Board observes that service treatment records confirm treatment for an ingrown toenail. In August 1978, persistent symptoms were reported over a 2-month period. The Veteran was granted a profile with restrictions on running, marching, and physical training. Use of sandals or shower shoes were recommended for a 10-day period. Other treatment records note treatment for skin conditions including tinea versa color, tinea cruris and pseudo folliculitis barbe. Skin rashes to the back, groin, and other areas of the body were also reported. Post-service treatment records document treatment for itchy rashes to the skin, including the arms, back, and buttocks. A current diagnosis of plantar fasciitis was noted in July 2016. Other complaints of chronic foot pain were noted in October 2015. Topical medication, Ketoconazole cream was prescribed to treat his symptoms in April 2015. According to military personnel records, the Veteran's official military occupation was listed as cannon crewman and Hercules missile crewman. Both roles required prolonged walking, standing, and heavy lifting. The Board observes that to date, the Veteran has not been afforded a VA examination regarding his bilateral foot condition. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. As the evidence suggests a possible correlation between the Veteran's performance of his official military occupation and his current diagnosis of plantar fasciitis, a VA examination is required. Where the record before the Board contains insufficient medical information for evaluation purposes, a remand may be required. Littke v. Derwinski, 1 Vet. App. 90. (1990). 3. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that he is entitled to service connection for obstructive sleep apnea. During a Board hearing in October 2021, the Veteran reported an onset of sleep trouble with daytime fatigue dating a back to active service. Service treatment records confirm reports of generalized fatigue and difficulty rising from sleep. An onset of symptoms occurred 1 year earlier. The Veteran denied use of oral medications to treat his symptoms. Problems with fatigue were reported at nighttime and during the day. Other treatment records document multiple instances of treatment for an upper respiratory infection, bronchitis, cold symptoms and an in-patient hospitalization for pneumonia. Post-service treatment records indicate that the Veteran was diagnosed with obstructive sleep apnea, hypopnea syndrome following a sleep study in October 2004. Continuous positive airway pressure (CPAP) therapy was prescribed to treat his symptoms. Ongoing problems with chronic sleep trouble and daytime fatigue were reported. Review of the record indicates that, to date, the Veteran has not been afforded a VA examination. As noted above, the medical evidence suggests a possible correlation between the Veteran's complaints of sleep trouble, daytime fatigue, and upper respiratory symptoms in-service and his current diagnosis of obstructive sleep apnea. Therefore, a VA examination is required. Where the record before the Board contains insufficient medical information for evaluation purposes, a remand may be required. Littke v. Derwinski, 1 Vet. App. 90. (1990). The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's acquired psychiatric disorder, to include PTSD and MDD with generalized anxiety. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. (a) The examiner should identify a diagnosis for any psychiatric disorder is found and note the evidence in support thereof. (b) Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that an acquired psychiatric disorder was incurred in, caused by or is otherwise related to active service, to include as due to in-service treatment/counseling for depression and a poor mood. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's plantar fasciitis. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran's plantar fasciitis was incurred in or otherwise causally related to in-service treatment for an in-grown toenail, skin rashes, or performance of his official duties as a cannon crewman or Hercules missile crewman. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's obstructive sleep apnea. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran's obstructive sleep apnea was incurred in, causally related to active service, to include as due to in-service complaints of daytime fatigue and sleep disturbance. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. 5. Thereafter, re-adjudicate the Appellant's claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.