Citation Nr: 1330526 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-00 330A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, C.H. and J.H. ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from July 1986 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2006 and April 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In May 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record and has been reviewed. Although the Veteran filed a claim for service connection for PTSD, the record includes different diagnoses, including depressive disorder and anxiety disorder. The Board must address, whether the symptoms, regardless of diagnosis, are related to service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Board broadened the claim to allow for consideration of service connection for any acquired psychiatric disorder. The claim is therefore, characterized as service connection for an acquired psychiatric disorder to include PTSD. FINDINGS OF FACT 1. In an unappealed December 2000 rating decision, the RO denied service connection for PTSD. 2. A claim to reopen service connection for PTSD was received in February 2007. 3. Evidence received since the December 2000 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim. 4. The Veteran has a current diagnosis of PTSD which has been linked to in-service stressors. 5. An acquired psychiatric disorder, other than PTSD, is not related to service. 6. Sleep apnea was not shown in service or for many years after and is unrelated to active service. CONCLUSIONS OF LAW 1. The December 2000 rating decision which denied service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104 , 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 4. The criteria for service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303 (2012). 5. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court has held that the VCAA requires additional notice when a claimant seeks to reopen a previously denied claim. In Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006), the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the appellant with notice of the evidence of service connection found lacking in the previous denial. A January 2005 letter advised the Veteran of the evidence required to substantiate the claim for service connection for sleep apnea. A September 2007 letter provided notice to the Veteran of the basis for the prior denial of his claim for service connection for PTSD. The letter informed the Veteran of the evidence needed to reopen the claim as well as the evidence needed to substantiate a claim for service connection. The January 2005 and September 2007 letters advised the Veteran what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The September 2007 letter included provisions for disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records and post-service VA treatment records. The Veteran was afforded adequate VA examinations. He was afforded a VA examination for sleep apnea in December 2010 and an examination for PTSD in January 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in this case are adequate. The VA nexus opinions provided considered all of the pertinent evidence of record, to include service treatment records, VA treatment records, and the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Analysis of Claims Claim to Reopen Service Connection for PTSD The RO previously considered and denied a claim for service connection for PTSD in a December 2000 rating decision. The December 2000 rating decision found that the evidence did not show a diagnosis of PTSD. The Veteran did not submit a timely NOD to the December 2000 rating decision. The Veteran did not appeal the RO's decision, and he did not submit any additional evidence within a year following this decision. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the decision became final one year later. In February 2007, the Veteran filed a claim to reopen service connection for PTSD. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. For claims filed on or after August 29, 2001, as in this case, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable probability of substantiating the claim. During the pendency of the appeal, the RO reopened service connection and denied the claim on the merits. Regardless of whether the RO reopened the claim, the Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable probability of substantiating the claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's Secretary's duty to assistor through consideration of an alternative theory of entitlement. Id. at 118. The evidence of record at the time of the December 2000 rating decision included service treatment records, a report of a VA examination dated in September 1993 and VA outpatient treatment records. Service treatment record do not show complaints or diagnoses of a psychiatric disorder. The VA outpatient treatment records and the September 1993 VA examination also did not show complaints or diagnoses of PTSD. The evidence received since the December 2000 rating decision includes VA treatment records, reports of VA examination dated in September 2007 and January 2011 and the Veteran's statements. VA treatment records reflect diagnoses of chronic PTSD, service-related. A VA outpatient record dated in April 2007 reflects that positive history of depression and PTSD was noted. The September 2007 VA examination reflects that a VA examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD. A report of a VA examination dated in January 2011 reflects that a VA examiner opined that the criteria for a diagnosis of PTSD were not met. In his written statements, the Veteran described stressors he experienced in service. The Veteran reported seeing dead bodies and having mortars explode near him. The Board finds that the evidence received since the last final denial is both new and material. The VA treatment records and VA examination reports relate to an unestablished fact necessary to substantiate the claim, specifically whether the Veteran has PTSD which is related to in-service stressors. Accordingly, the Veteran's claim is reopened and will be readjudicated on the merits. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). Reopening the claim does not end the inquiry; rather, consideration of the claim on the merits is now required. Because the appellant has had opportunity to address the merits of this claim, the Board may proceed with a final adjudication of the merits of the claim because there is no prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service Connection for an Acquired Psychiatric Disorder, to include PTSD Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1); see also 38 U.S.C.A. § 1154(b). "Engaged in combat with the enemy" requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile instrumentality. VAOPGCPREC 12-99. Where the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the amendment to 38 C.F.R. § 3.304(f) provides that, if a stressor claimed by a veteran is related to fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that the symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. As the Veteran's claim to reopen service connection for PTSD was pending on appeal as of July 13, 2010, the amended regulations apply to his claim. The regulation provides that, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The Veteran asserts that PTSD is related to stressors in service. The Veteran described his stressors in an April 2007 statement. Therein, the Veteran indicated that he saw severely damaged Iraqi tanks and dead bodies around those vehicles. He stated that a mortar round exploded near him. The Veteran stated that he was haunted by this experience and often thought of what would have happened if the mortar hit his vehicle. In this case, the evidence does not reflect that the Veteran engaged in combat with the enemy; therefore, the combat presumptions are not met. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d); VAOPGCPREC 12-99. The DD Form 214 does not show combat awards or citations. The Board notes that the 2010 amendment to the PTSD regulation reduced the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3). The Veteran had a VA examination in September 2007. The examination report reflects that the Veteran reported depression and transient suicidal ideation and complained of getting irritated and feeling uncomfortable around people. The VA examiner diagnosed depressive disorder. The VA examiner opined that the Veteran did not meet the DSM-IV criteria for PTSD. The VA examiner indicated that there were no behavioral or social changes or re-experiencing and heightened psychological arousal due to service. The VA examiner opined that the criteria for a diagnosis of PTSD were not met. The VA examiner stated that there were no behavioral, social changes or re-experiencing and heightened psychological arousal due to service. A VA mental health note dated in October 2008 noted a positive score on PTSD and depression screens related to Gulf War-Desert Storm service. A VA psychiatrist diagnosed major depressive disorder, chronic PTSD, service-related, and dysthymia. VA mental health treatment notes dated in December 2008, June 2009, August 2010 and April 2011 also reflect diagnoses of major depressive disorder and chronic PTSD, service-related. The Veteran had a VA examination in January 2011. The VA examiner concluded that the criteria for a diagnosis of PTSD did not appear to be met, based upon the Veteran's self-report on the clinician-administered PTSD scale for DSM-IV. The VA examiner diagnosed depressive disorder, not otherwise specified and anxiety disorder, not otherwise specified. The VA examiner opined that the onset of the Veteran's anxiety was reportedly three years prior, and it did not appear to be a direct result of his military experiences. The VA examiner indicated that the Veteran's depressive symptoms first appeared in 1995, approximately four years after his reported traumatic experiences. The VA examiner noted that the Veteran did not equate his depressive symptoms (or his anxiety-based symptoms) to his military experiences. The VA examiner opined that it seems unlikely that his depressive disorder, not otherwise specified is a direct result of his military experiences. While the VA examinations in October 2007 and January 2011 concluded that the Veteran did not meet the criteria for a PTSD diagnosis, the Board finds that a current diagnosis of PTSD is established based upon VA treatment records which demonstrate diagnoses of PTSD according to DSM-IV criteria. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the VA psychiatrist who diagnosed the Veteran with PTSD in October 2008, December 2008, June 2009, August 2009 and April 2011 concluded that the Veteran endorsed problems with experiencing, witnessing, or being confronted with an event(s) that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and the experience lead to the Veteran's response that involved intense fear, helplessness, or horror. The Board notes that the service personnel records do not confirm the Veteran's reported stressors. The revision to the regulation regarding PTSD based on fear of hostile military activity provides that VA may adjudicate the claim on the basis of the Veteran's lay testimony if the PTSD stressor is adequate to support a diagnosis by a VA psychiatrist. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record is at least in relative equipoise as to whether PTSD is related to the Veteran's service. Therefore, service connection for PTSD is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. With regard to the claim for service connection for an acquired psychiatric disorder other than PTSD, the post-service medical records reflect that the Veteran has been diagnosed with acquired psychiatric disorders other than PTSD, including depressive disorder, anxiety and dysthymia. As indicated in the introduction, the claim was recharacterized as a claim for service connection for an acquired psychiatric disorder, to include PTSD, pursuant to Clemons. The September 2007 VA examination noted a diagnosis of depressive disorder, and the January 2011 VA examiner diagnosed the Veteran with depressive disorder and anxiety disorder. The January 2011 VA examiner opined that these disorders are not related to service. There is no other medical evidence of record linking any acquired psychiatric disorder, other than PTSD, to service. Because no competent evidence relates these disorders to active service, a grant of service connection for these disorders is not warranted. See 38 C.F.R. § 3.303. Service Connection for Sleep Apnea The Veteran asserts that current sleep apnea is related to exposure to toxins during his Gulf War service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sleep apnea is not one of the chronic diseases listed in 38 C.F.R. § 3.309(a); accordingly § 3.303(b) is not applicable to the claim for service connection for sleep apnea. The Veteran asserts that his current sleep apnea is related to his exposure to smoke and burning oil when he was in service during the Gulf War. At the Board hearing, the Veteran testified that he started having problems sleeping shortly after service. The Veteran testified that he would stop breathing for long periods of time and that he would wake up feeling sluggish. Service treatment records do not reflect complaints or diagnoses of a sleep disorder. Post-service complaints of a sleep disorder are initially shown in 2000. A VA treatment record dated in April 2000 reflects that the Veteran reported complaints of tiredness and fatigability, as well as feeling sleepy during the day. The Veteran's wife reported that he had a history of sleep apnea, where he would stop breathing in his sleep. The Veteran reported that he was initially referred to a VA medical center for evaluation, but he missed his appointment. A VA physician noted a diagnosis of "rule out sleep apnea associated with a history of stopping breathing at night." The treatment record noted that the Veteran would be referred to the pulmonary department for evaluation. In October 2008, the Veteran had a Gulf War Guidelines examination. The Veteran reported obstructive sleep apnea, which was treated with CPAP. The VA examiner diagnosed obstructive sleep apnea but did not provide an opinion regarding etiology. The Veteran had a VA examination in December 2010. The Veteran reported that he began having fatigue in 1991. He reported that he initially sought treatment for fatigue in 1999. He reported that he was evaluated in 2000 and was diagnosed with sleep apnea and prescribed a CPAP machine. The Veteran reported that he was fatigued every day and intermittently during the day. The examiner noted a diagnosis of obstructive sleep apnea, poorly responsive to CPAP. The VA examiner opined that sleep apnea is not caused by or the result of military service because the Veteran reports that he was diagnosed more than five years after service. The Board finds that the weight of the competent evidence is against a finding that the Veteran's sleep apnea is related to service. The competent medical evidence of record does not provide a nexus between the Veteran's current obstructive sleep apnea and service. The Board has considered the Veteran's testimony, in which he indicated that he had sleep apnea symptoms since shortly after separation from service. A layperson is competent to testify regarding such observable symptomatology as trouble sleeping. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran, however, is not competent to establish a matter that requires medical knowledge, such as providing an etiological link of his current sleep apnea to service. In this case, Veteran has a known clinical diagnosis of obstructive sleep apnea. Therefore, the Veteran's sleep disorder does not fall within the purview of the undiagnosed illness presumptive provisions, and presumptive service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not warranted. In sum, the most probative evidence of record does not establish that the Veteran's current sleep apnea developed as a result of an established event, injury, or disease during active duty service. A competent medical opinion concluded that the Veteran's sleep apnea is less likely related to military service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for sleep apnea, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. Service connection for PTSD is granted. Service connection for sleep apnea is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs