Citation Nr: 1327844 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 08-06 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder (claimed as a mood disorder), to include as secondary to service-connected sleep apnea. ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from April 1983 to January 1996. This matter came before the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appeal was remanded in August 2011, and has been returned to the Board for appellate consideration. FINDING OF FACT The Veteran has an acquired psychiatric disorder that is related to a service-connected disability, sleep apnea. CONCLUSIONS OF LAW An acquired psychiatric disorder is secondary to the service-connected sleep apnea. 38 C.F.R. § 3.310(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). As the Board has determined that service connection for the claimed disability is warranted, no further discussion of the VCAA is necessary. Analysis Service connection may be granted for any disease initially diagnosed after service, 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 may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Service treatment records are negative for any diagnosis or abnormal finding suggestive of an acquired psychiatric disorder. They indicate that sleep apnea was diagnosed in January 1993. Weight loss and continuous positive airway pressure (CPAP) were recommended. On chapter separation examination in October 1993, the Veteran endorsed frequent trouble sleeping and depression or excessive worry. The examiner made no notation concerning the endorsement of depression or excessive worry. On clinical examination, the Veteran was psychiatrically normal. A January 1994 narrative summary for medical board notes that the Veteran was recommended for surgery in April 1993, but that there was a six-month waiting list, and the Veteran was concurrently being processed for administrative separation from service due to obesity. The author of this narrative, a physician, indicated that a provider had suggested that sleep apnea might play a role in the Veteran's inability to lose weight, and he was again referred for evaluation for surgery. Following examination in January 1994, the physician concluded that the Veteran had severe obstructive sleep apnea and was obese. He noted that he had been given an adequate trial of nasal CPAP and had not undergone the recommended surgery. He concluded that the Veteran was unfit for continued active duty service. The report of a December 1994 polysomnography evaluation indicates that a Beck Depression Inventory was normal. Physical Evaluation Board Proceedings dated in August 1995 indicate that the Veteran was unfit for duty due to moderately severe obstructive sleep apnea. On VA general medical examination in April 1996, the Veteran was psychiatrically normal. A September 1999 VA psychology note indicates that the Veteran was seen to discuss obesity treatment. The provider recorded no complaints suggestive of psychiatric symptoms or diagnosis. VA problem lists are negative for a diagnosis of an acquired psychiatric disorder. A February 2006 VA preoperative anesthesia evaluation indicates that the Veteran denied schizophrenia, anxiety, depression, and claustrophobia. In an April 2006 report, H.J., M.D. indicated that the Veteran had been depressed for a long time and also had feelings of anxiety. He noted that the Veteran had developed morbid obesity and sleep apnea during his military service. He further noted that the Veteran had developed depression "on top" of his medical problems. He opined that the Veteran's problems were service-connected and had affected his quality of life and job performance. He indicated a diagnostic impression of major mood disorder, anxiety disorder, and sleep disorder due to general medical condition. On VA examination in December 2007, the Veteran's history was reviewed. The examiner noted that VA notes dating from February 1999 were negative for any significant emotional or psychiatric complaints, symptoms, or conditions. He indicated that an April 2006 psychiatric evaluation had diagnosed the Veteran with major mood disorder, anxiety disorder, and sleep disturbance, all due to a general medical condition, presumably sleep apnea, although such was not clearly spelled out in the evaluation. He noted that during that evaluation, symptoms of depressed mood, feelings of hopelessness and helplessness, daytime sleepiness, anxiety, restlessness, and concentration difficulties were identified. He further noted that the Veteran was assigned a global assessment of functioning score of 32, indicating major psychological impairment or major impairment in several areas. On mental status examination, the Veteran presented as alert, polite, and cooperative. Speech was within normal limits, and was spontaneous and appropriately responsive. His affect was responsive. He became most overtly emotional in discussing the difficult time he and his wife had experienced over an affair she had engaged in approximately one year previously. He also demonstrated a more worried and pained affect and demeanor in regard to his son's problems; his own financial difficulties; the impact of his sleep apnea on his daily functioning and vocational opportunities; the social impact of his weight and his skin condition; and chronic symptoms associated with his skin condition. Following full examination, the examiner concluded that the Veteran had some significant emotional distress, primarily anxiety symptoms, but that they were insufficient to merit a mental disorder diagnosis. He noted that the Veteran most nearly met the criteria for anxiety disorder not otherwise specified in view of chronic and excessive worry and some degree of heightened edginess and irritability, but that those features did not appear of sufficient severity to constitute such a disorder. Rather, he noted that they were seen as certainly troublesome and significant manifestations of the Veteran's various concerns. He indicated that, whereas it appeared that the Veteran's concerns and complications related to sleep apnea and skin condition were a significant part of his overall subjective functioning, it appeared that other concerns - family and financial - were at least as salient and at least as strongly linked to his anxiety. He pointed out that the current findings contrasted markedly with those of the psychiatric evaluation conducted in April of the previous year. He concluded that it was not possible, based on the current information, to reconcile that divergence. He noted that it did not seem likely that the Veteran's symptoms and functioning had changed significantly since that evaluation, at least not in a way that resolution of major psychiatric problems would have been achieved. He stated that if anything, it seems likely that the Veteran was experiencing greater distress in view of family disruption. He indicated that in any event, the current evaluation, based on the Veteran's self report and clinical observation, failed to support a diagnosis of major mood disorder or anxiety disorder. He again acknowledged that there were significant anxiety symptoms, primarily conscious worry. The sole Axis I diagnosis was partner relational problem. An additional VA examination was carried out in August 2011. The examiner reviewed the Veteran's history. He noted symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting in stressful circumstances. He provided a diagnosis of specific phobia, situational type. He specified that the Veteran was more likely than not diagnostic for specific phobia due to situational factors such as claustrophobia and fear of suffocation that was a medically complicating factor in his service-connected obstructive sleep apnea treatment. He noted that the Veteran had been unable to tolerate CPAP treatment because of his specific phobia, which in turn had impaired his ability to function adequately during the day because of persistent daytime hypersomnolence and fatigue. He suggested behavioral therapy for specific phobia in conjunction with the VA medical center neurodiagnostic laboratory and the outpatient psychology clinic. In January 2012 the VA examiner provided an addendum. He stated that no current diagnosed acquired psychiatric disorder had its onset during service or within the initial post-service year. He reasoned that the Veteran carried a current diagnosis of situational phobia which had manifested itself in medical complications related to compliance with obstructive sleep apnea treatment (i.e., the Veteran refused to use his CPAP device because of anxiety/fear/phobia of suffocation). He further indicated that the Veteran's situational phobia was caused by the treatment method for his sleep apnea syndrome. He noted that situational phobia was readily amenable to behavioral treatment, so permanency was not a factor should proper psychological/behavioral treatment be carried out by the sleep laboratory. He indicated that this situational phobia was specific to the CPAP treatment and not generalized to other situations or environments, which might be why it was not noted in the December 2007 VA examination. The examiner further noted that the April 2006 private medical opinion hinted at the connection between the Veteran's sleep apnea and anxiety factors, but again, specific inquiry about claustrophobic anxiety associated with the CPAP therapy did not appear in that report. He reiterated that the Veteran did not carry any other anxiety disorder diagnosis. Upon review of the record, the Board finds that service connection for an acquired psychiatric disorder is warranted. In this regard, both the Veteran's private provider and the more recent VA examiner have diagnosed anxiety disorders. The Board observes that the August 2011 VA examiner provided a diagnosis of specific phobia, which, pursuant to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), is classified as an anxiety disorder. While the private practitioner indicated that the Veteran's psychiatric diagnoses were related to his general medical condition, the VA examiner specified that the diagnosed specific phobia was due to the treatment for the Veteran's service-connected sleep apnea. As there is an informed medical opinion linking the claimed psychiatric disorder to the Veteran's service-connected sleep apnea, service connection is in order. ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs