Citation Nr: 22018786 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-11 336 DATE: March 30, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder and psychophysiological insomnia is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his major depressive disorder and psychophysiological insomnia began during or is otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder and psychophysiological insomnia, are met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1982 to June 1987 and from October 1990 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran provided testimony during a videoconference Board hearing before the undersigned Judge. A transcript of the hearing has been reviewed and is associated with the claims file. In November 2019, the Board remanded this case for further development. During the pendency of the appeal, in an October 2021 rating decision, service connection for undiagnosed illness manifested by muscle tremors/myoclonic jerks and body aches was granted with an evaluation of 40 percent effective June 3, 2015. Because the Veteran was awarded service connection, this issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board has broadened the Veteran's claim for depression as due to Gulf War undiagnosed illness to one for an acquired psychiatric disorder, to include major depressive disorder and psychophysiological insomnia, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for an acquired psychiatric disorder ton include major depressive disorder and psychophysiological insomnia Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125(a)), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The Veteran contends that service connection for an acquired psychiatric disorder is warranted. Specifically, he contends that his mental disorder is related to service in Southwest Asia. Regarding the first element of service connection, a July 2020 VA examiner diagnosed the Veteran with major depressive disorder and psychophysiological insomnia. See July 2020 Mental Disorders (other than PTSD and eating disorders) Disability Benefits Questionnaire. Thus, the Veteran has met the "current disability" requirement under Shedden. Regarding the second element of service connection, the Veteran has stated that he was already in Saudi Arabia when his unit got word that they will be deployed in Iraq and that they were all anxious and under lot of stress. He noted that during his deployment in Iraq (Desert Storm), he was in a combat zone and that, although he did not engage in combat, he was not "far from where the action was". The Veteran stated that his unit treated the wounded and that they lost people (two of whom were supporting them). See December 2003 Correspondence. The Veteran has also asserted that he was alerted that his unit was possibly exposed to small amounts of chemical weapons. See June 2019 Hearing Transcript. The stressors alleged by the Veteran have not been verified by VA, but stressor verification is not required for non-PTSD psychiatric diagnoses. The Veteran's military personnel records state that the Veteran was awarded multiple decorations, medals, badges, citations, and ribbons to include Southwest Asia Service Medal w/3 Bronze and Kuwait Liberation Medal. See DD 214 Certificate of Release or Discharge From Active Duty. The Veteran's military occupational specialty (MOS) was medical specialist. Additionally, his personnel records indicate that he served active duty in Operation Desert Shield/Storm. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Thus, the second service connection requirement is met because the claimed stressors are consistent with the places, types, and circumstances of that Veteran's service. Turning to the third service connection requirement (nexus), a February 1998 physician opined that "basically, l feel this gentleman definitely has all the symptoms and the difficulties that one would expect to see with somebody exposed to multiple different chemicals and multiple different vaccines along with all other multiple problems that one could see secondary to the Gulf War experience." The physician recommended that the Veteran undergo a neuro psychological evaluation for his short term memory. See Medical Treatment Record - Non-Government Facility. In a December 2001 VA treatment record, it was noted that the Veteran's boss had called the physician unbeknownst to the Veteran, reporting that he feels that the Veteran might be depressed. The Veteran reported that he has seen a psychiatrist and has taken a number of tests. The Veteran stated that he took Prozac, but only for a few days and he stopped it because it made him feel apathetic and uninvolved. He reported low energy, and lack of concentration. It was also noted that he has a history of suicidal thoughts but not recently. The initial assessment was chronic fatigue. See Medical Treatment Record - Government Facility. In September 2019, a private examiner providing a positive nexus, noted that the Veteran has been a patient of his since June 25, 2018. The examiner noted that at the time of assessment, the Veteran self-reported the following symptoms: anger, depression, grief and loss, irritability, low self-esteem, memory problems, mood problems, relationship concerns, some social problems, past suicidal thoughts, trauma, past inappropriate guilt, and social anxiety (especially around/in crowds). The Veteran also denied knowledge of any family psychiatric history. The examiner noted that she had reviewed the Veteran's service records. The examiner opined that it is at least as likely as not that the Veteran's symptoms represent Gulf War illness that are linked to the incident that occurred during his deployment in Iraq. The examiner's rationale was that after considering the Veteran's symptoms, the fact that he did not experience, report, or seek treatment for any mental health condition prior to his deployment, and has no history of family psychiatric illness, the Veteran's symptoms are consistent with Gulf War Illness with delayed onset. See September 2019 Medical Treatment Record - Non-Government Facility. Following the Board's remand directives, the Veteran was afforded a VA Mental Disorders (other than PTSD and Eating Disorders) examination in July 2020. The diagnoses were major depressive disorder, recurrent, moderate, and psychophysiological insomnia. The examiner noted that the Veteran's depressed mood is chronic in nature and attributable to a known clinical diagnosis and currently meets the criteria for major depressive disorder which has been present for more than six months. The examiner noted that the Veteran exhibits occupational and social impairment with reduced reliability and productivity. The examiner explained that it is more likely than not that the Veteran's symptoms and complaints of both depression and erratic sleep patterns are due to diagnoses of major depressive disorder and psychophysiological insomnia. The examiner concluded that these diagnoses, more likely than not, were caused by in-service stressors, including exposure to combat, and feeling harassed by superiors among others (as the Veteran reported being harassed by Platoon Sergeant S. in the early 1990s). See July 2020 C&P Examination. After a review of the record, the Board finds that the July 2020 C&P examination is adequate and sufficient to evaluate the Veteran's mental health disorder claim, and that the evidence shows that the Veteran's acquired psychiatric disorder diagnosed as major depressive disorder and psychophysiological insomnia is related to service. The Board affords significant probative value to the findings of the July 2020 psychiatric examination as it was based on an in-person examination and comprehensive review of the claims file; and the examiner provided an adequate rationale relating the Veteran's current mental health disorder to his active service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, there are no competent opinions to the contrary. Moreover, the Board finds that the stressors mentioned by the Veteran are consistent with the time, place, and circumstances of his service. His military personnel records clearly indicate that he honorably served in Southwest Asia and in Operation Desert Storm. The Board finds that the statements that the Veteran provided to the July 2020 VA examiner regarding his stressors and symptoms reflect that he was keenly aware of the effects and symptoms of his mental health condition as he directly experienced them first-hand. The Veteran is competent to report observable symptoms and events in-service and his lay statements comport with his in-service duties and experiences in Southwest Asia. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the Board has no reason to doubt the Veteran's statements regarding his in-service stressors and as already stated above, stressor verification is not required for non-PTSD psychiatric diagnoses. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, as required, the Board finds that the record reasonably shows that the Veteran has an acquired psychiatric disability of major depressive disorder and psychophysiological insomnia, which are related to events that occurred during active duty service. Therefore, service connection for an acquired psychiatric disorder diagnosed as major depressive disorder and psychophysiological insomnia is granted. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. In November 2019, the Board remanded the Veteran's service connection claim for an erratic sleep pattern, for a comprehensive sleep study and a medical opinion. A sleep study conducted on April 27, 2021, at the Somnology, Inc reveal a diagnosis of obstructive sleep apnea. See C&P Examination. In an April 2021 VA examination, the examiner opined that it is less likely than not that Veteran's OSA was incurred in or caused by Veteran's exposures during service and concluded that other causes for OSA, such as the Veteran's male sex, are more likely to have contributed to his OSA than the Southwest Asia service. See April 2021 C&P Examination. After a thorough review of the Veteran's claims file, the Board determines that additional evidentiary development is necessary prior to the adjudication of this issue. The medical evidence establishes that the Veteran has a current diagnosis of OSA. One of the symptoms of the Veteran's mental health disorder is chronic sleep impairment. See July 2020 C&P Examination. The Board has herein granted service connection for a mental health disorder diagnosed as major depressive disorder and psychophysiological insomnia. Now, the evidence of the record raises the theory of secondary service connection. VA is required to consider all theories of entitlement to VA benefits, including secondary service connection, that are either raised by the claimant or reasonably raised by the record. Schroder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Accordingly, on remand, a VA opinion must be obtained to determine whether the Veteran's OSA is caused or aggravated by his now service-connected mental health disorder. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with the Veteran's claims folder. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. He should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 2. Then, obtain a medical opinion that determines the nature and etiology of the Veteran's OSA. After record review of the record, the examiner should offer his or her opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA was incurred in, caused by, or etiologically related to his service? (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA is caused by his now service-connected major depressive disorder and psychophysiological insomnia? (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA is aggravated (i.e., worsened beyond the natural progress) by his now service-connected major depressive disorder and psychophysiological insomnia? If the examiner determines that the Veteran's OSA is aggravated by his major depressive disorder and psychophysiological insomnia, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of OSA is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.] A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate this issue remaining on appeal. If this benefit remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.