Citation Nr: 1331148	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  10-04 979	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut

THE ISSUES

1.  Entitlement to a disability rating higher than 50 percent for obstructive sleep apnea.

2.  Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) (claimed as depressive disorder), including as secondary to the obstructive sleep apnea.

3.  Entitlement to service connection for PTSD.

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant-Veteran

ATTORNEY FOR THE BOARD

T. Y. Hawkins, Counsel


INTRODUCTION

The Veteran served on active duty from April 1971 to April 1974.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which confirmed and continued the 50 percent rating for his obstructive sleep apnea that previously had been diagnosed and evaluated as psycho-physiological nervous system disorder with narcolepsy.  The RO also denied his claims of entitlement to service connection for depressive disorder and PTSD.

In February 2008, in support of his claims, the Veteran testified at a hearing at the RO before a local Decision Review Officer (DRO).  A transcript of the hearing has been associated with the Veteran's claims file for consideration.

The Board has recharacterized the issue of entitlement to service connection for depressive disorder to more broadly encompass entitlement to service connection for an acquired psychiatric disorder other than PTSD pursuant to 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).

It is additionally worth noting that a portion of the Veteran's records are in the "Virtual VA" system.  Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process.  The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits.  VA also is in the process of transitioning to an even newer and purportedly better electronic medium - the Veterans Benefits Management System (VBMS).



FINDINGS OF FACT

1.  Throughout the period on appeal, the Veteran's obstructive sleep apnea has required use of a bi-level positive airway pressure ("BIPAP") machine, but without evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale or tracheostomy.

2.  The most probative (competent and credible) evidence of record indicates his acquired psychiatric disorders are not the result of his active duty military service, are not related to or permanently worsened by any service-connected disability, including especially his obstructive sleep apnea, and a psychosis did not initially manifest to a compensable degree within one year of his separation from service.

3.  He did not engage in combat against an enemy force, and there is no corroboration or verification of the occurrence of his claimed in-service stressor.

4.  The most probative evidence of record also indicates he does not have a valid diagnosis of PTSD based on a confirmed stressor meeting the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) ("DSM-IV").


CONCLUSIONS OF LAW

1.  The criteria are not met for a disability rating higher than 50 percent for the obstructive sleep apnea.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Codes (DCs) 8108-6847 (2012).

2.  The Veteran's acquired psychiatric disorders were not incurred in or aggravated by his active military service, may not be presumed to have been, and are not proximately due to, the result of, or aggravated by a service-connected disability - especially his obstructive sleep apnea.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

3.  The criteria also are not met to establish entitlement to service connection for PTSD, in particular.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304(f).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 ("VCAA")

VA has met all statutory and regulatory notice-and-duty-to-assist obligations.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

      A) Duty to Notify

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  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 United States Court of Appeals for Veterans Claims ("Court" or "CAVC") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession pertaining to the claim.  But element (4), the requirement of requesting that the claimant provide any evidence in his or her possession pertaining to the claim, since has been eliminated.  See 73 Fed. Reg. 23353 (final rule eliminating "fourth" element notice as required under Pelegrini, effective May 30, 2008).

The VCAA notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date in the eventuality the underlying claim of entitlement to service connection is granted.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

Here, from April 20, 1974 to May 5, 2006, the Veteran's obstructive sleep apnea was diagnosed instead as a psycho-physiological nervous system disorder with narcolepsy and evaluated as 10-percent disabling.  His greater 50 percent rating for this disability took effect as of May 5, 2006, so this is not an initial-rating claim in the true sense, rather, an appeal for an even higher rating for an already established service-connected disability.  Compare and contrast the holdings in Fenderson v. West, 12 Vet. App. 119, 125-26 (1999), with those in Hart v. Mansfield, 21 Vet. App. 505 (2007).  In either case, however, the Board must consider whether to "stage" the rating - meaning assign different ratings at different times if there have been occasions when the disability has been more severe than at others.  This is meant to compensate the Veteran for this variance.

In the initial-rating context, the Court has held that where service connection has been granted, and the initial rating assigned, the service-connection claim has been more than substantiated - it has been proven.  See Dingess/Hartman v. Nicholson, supra.  As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled.  Therefore, any notice defect is nonprejudicial.  See Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).


According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and this line of precedent cases and General Counsel opinion, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a Statement of the Case (SOC) if the disagreement is not resolved.  Moreover, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream element of the claim.

In the established-rating context (i.e., the more traditional increased-rating claim), the VCAA notice described in 38 U.S.C.A. § 5103(a) need not be Veteran-specific or advise the Veteran that, to substantiate his claim, he must submit medical or lay evidence showing the effect any worsening in his disability has on his employment and daily life.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  Rather, VA need only provide "generic" notice advising him of the evidentiary and legal criteria for establishing his entitlement to greater compensation.  Id.

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in an SOC or Supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).


The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, regardless of how one characterizes the Veteran's claim concerning the rating for his obstructive sleep apnea, that is, as an initial-rating versus established-rating claim, a letter dated in July 2008 informed him of the specific DCs applicable to the evaluation of this service-connected disability and the January 2009 SOC readjudicated the claim.  Therefore, although the notice did not precede the initial adjudication of his claim, his claim has been reconsidered since providing all required notice concerning the claim.  See Dingess/Hartman, supra; see also Mayfield v. Nicholson, 20 Vet. App. 537 (2006), citing Mayfield v. Nicholson, 444 F.3d at 1333-34 (holding that providing the claimant with notice followed by a readjudication of the claim in an SOC or SSOC "cures" any timing problem associated with the lack of notice/inadequate notice prior to an initial adjudication).  Moreover, during his hearing at the RO he made several statements demonstrating his actual knowledge and familiarity with the criteria needed to obtain a higher disability evaluation.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).

Further regarding that hearing at the RO before a local DRO, there was the required compliance with 38 C.F.R. § 3.103(c)(2) insofar as:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).


This appeal also stems from the RO's denial of the Veteran's claims of entitlement to service connection for PTSD and another acquired psychiatric disorder, namely, a depressive disorder.  By way of pre-adjudication letters dated in March 2007 and June 2007, respectively, he was informed of the types of evidence needed to substantiate these service-connection claims, apprised of the division of responsibility between himself and VA in obtaining this required supporting evidence, and asked to provide any information or evidence in his personal possession pertaining to these claims.  38 U.S.C.A §5103(a); 38 C.F.R. § 3.159(b).  The March 2007 letter also provided him notice of the type of information and evidence necessary to substantiate a service-connection claim on a secondary basis (i.e., based on purportedly having additional disability that was caused or is being aggravated by a service-connected disability).  The June 2007 letter satisfied the requirements of Dingess/Hartman, as well, in informing him of how VA determines the disability rating and effective date for disabilities that are found to be service connected.

      B) Duty to Assist

The Board also is satisfied that the duty to assist has been met.  The claims folder contains the Veteran's service and post-service treatment records and VA examination reports dated in August 2007 and December 2008.  The claims folder also contains his personal statements and testimony in support of his claims.  He has not referenced any outstanding, available, records that he wanted VA to obtain or that he believed were relevant to his claims that have not already been obtained and associated with the file for consideration.

With regards to the examination reports, the Board sees the examiners elicited from the Veteran his history of symptoms, performed comprehensive physical evaluations, along with a review of diagnostic test results when warranted, and provided the results of the examinations, including reasons and bases for their opinions.  While the December 2008 examiner noted that his review included the Veteran's claims folder, the August 2007 examiner indicated he did not have access to the claims folder, but did review the Veteran's VA medical records (which are available to clinicians electronically in the computerized patient record system).  The Court has held that the absence of a claims file review does not necessarily render an examination inadequate or reduce the probative value of the examination.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Snuffer v. Gober, 10 Vet. App. 400 (1997).  Here, because entitlement to service connection for obstructive sleep apnea (albeit in the guise of another diagnosis) already had been established in years past, and this appeal arose from the Veteran's disagreement with an existing rating, the lack of a review of his prior treatment records was not inherently harmful.  The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  And in assessing the present level of disability this still permits the Board to determine whether there have been variances in the severity of the disability since the year immediately preceding the filing of the increased-rating claim, which is the relevant temporal focus, so as to in turn warrant the "staging" of the rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  Moreover, as will be discussed in greater detail below, the examiner discussed the specific findings of the July 2007 VA sleep study.  He also provided the diagnostic criteria necessary to evaluate the severity of the Veteran's obstructive sleep apnea.  Accordingly, the Board concludes that these reports are adequate upon which to base decisions in this case, so as to not require additional examination.  38 C.F.R. § 3.327(a).

In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claims has been consistent with the provisions of the VCAA.  The Veteran has been provided opportunity to submit evidence and argument in support of his claims, and to respond to his VCAA notices.  The purpose behind the notice requirement has been satisfied because he has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims.  Accordingly, the Board will proceed to a decision on the merits.


II.  Analysis

In deciding these claims, the Board has reviewed all of the evidence in the claims folder - both the physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its competency and credibility and resultant ultimate probative value, accounting for evidence that it finds persuasive or unpersuasive and providing reasons or bases for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Under 38 U.S.C.A. § 1154(a), VA also is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit Court held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted).  However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement ... any necessary evidentiary hurdles, depends on the type of disability claimed."  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  So this is a case-specific determination.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent).

A.  Entitlement to a Rating Higher than 50 percent for the Obstructive Sleep Apnea

Disability evaluations are determined by evaluating the extent to which a Veteran's
service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, and by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations.  Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).

Separate diagnostic codes (DCs) identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2013).


The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2012).  Where service connection already has been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue, and such symptoms warrant different evaluations, staged evaluations may also be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2008).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2013).  The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The Veteran now has a 50 percent rating for his service-connected obstructive sleep apnea under DCs 8108-6847.

Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned.  The additional DC is shown after the hyphen.  Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20 (2013).

Under DC 6847, a noncompensable evaluation is assigned for asymptomatic sleep apnea with documented sleep disorder breathing.  A 30 percent evaluation is assigned for sleep apnea with persistent daytime hypersomnolence.  A 50 percent evaluation is assigned for sleep apnea requiring the use of a breathing assistance device, such as a continuous positive airway pressure ("CPAP") machine.  A 100 percent evaluation is assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy.  38 C.F.R. § 4.97, DC 6847.

DC 8108 pertains to a diagnosis of narcolepsy.  In this case, although the RO did not cite to any authority for combing the ratings for narcolepsy and sleep apnea, it did note in the November 2007 rating decision that the Veteran had symptoms of somnolence during service, which were later diagnosed as narcolepsy.  As noted above, however, the current disability upon which service connection is based is obstructive sleep apnea.  In this regard, the DC for narcolepsy requires that it be rated under the criteria for petit mal epilepsy, which involves seizures.  In this case, however, the Board can find no evidence that the Veteran currently suffers from seizures or has experienced seizures since the year immediately preceding the filing of this increased-rating claim.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of DC should be upheld if supported by explanation and evidence).  See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained).

Review of the VA treatment reports show that, in July 2007, the Veteran underwent a polysomnogram consultation (sleep study), where it was noted that he had been diagnosed with obstructive sleep apnea one year earlier and had been given a CPAP machine.  It was further noted that his overall apnea/hypopnea index was 5 per hour, which was in the normal range.  There was no indication that he had carbon dioxide retention or cor pulmonale and no mention that a tracheostomy was necessary.  The clinician found a good clinical response to BIPAP at 22/18 cm of water pressure using the Veteran's own Respironics comfort gel interface.  The recommendation was to start the Veteran on a BIPAP at this level with his own interface.  It was further recommended that he lose weight, as the clinician noted this could reduce sleep-disordered breathing in some patients.

In August 2007, the Veteran was afforded a VA respiratory compensation and pension examination.  During the evaluation, the Veteran reported that he had been on a CPAP for over 20 years, but now felt better on the BIPAP continuously with 3 liters of oxygen, as he was no longer hyperventilating; he added that he felt less shortness of breath with the use of the oxygen.  He denied side effects from this treatment.  However, he stated that he felt he had been affected mentally by his obstructive sleep apnea, as he reported not sleeping well and having more depression, noting he had recently been admitted to the VA for depression with suicidal and/or homicidal ideations.  The Veteran also stated that he felt his depression was related to his decreased functional capabilities and difficulties with employment.  Upon physical examination, there was no evidence of cor pulmonale, right ventricular hypertrophy or pulmonary hypertension.  It was, however, noted that the Veteran had gained over 100 pounds since 2003, and now weighed 438 pounds.  A chest X-ray revealed no gross evidence of acute cardiopulmonary pathology.  The clinician discussed the July 2007 sleep study in detail, noting the results shows oxygen saturation levels well above 90 percent at the Veteran's level of BIPAP.  The diagnosis was severe obstructive sleep apnea that now requires BIPAP at increasing amounts of pressure, but with some symptomatic improvement since the increased titration of treatment.  Again, there was no indication of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or the necessity of a tracheostomy.  With regard to the issue of whether the Veteran's depression was the result of his obstructive sleep apnea, the examiner concluded that obstructive sleep apnea was less likely than not the etiology of his depressive symptoms, as there were additional contributing factors that were more likely the etiology of his depression.  The examiner noted that, since the Veteran was being treated in the VA mental health clinic, he would defer the etiology of his depression to a VA mental health examination.  

Based on this totality of evidence, the Board finds that the criteria for a disability evaluation higher than 50 percent for the Veteran's obstructive sleep apnea have not been met at any time during the current appeal period, meaning at any point since the year immediately preceding the filing of this increased-rating claim.  In this regard, the Board again notes that, during this relevant time period at issue, the Veteran has documented use of a BIPAP machine, but without indication of chronic respiratory failure with carbon dioxide retention, or cor pulmonale, or the need for a tracheostomy.  His extent of symptoms warrants a 50 percent disability evaluation under DC 6847.  As such, the assignment of a higher 100 percent disability evaluation is unwarranted.


The Board is mindful of his statements and hearing testimony that his obstructive sleep apnea warrants a higher disability rating because he is retaining carbon dioxide.  However, in determining the actual degree of disability, an objective examination is more probative of the degree of his impairment, especially insofar as whether he is meeting this requirement.  Furthermore, his personal opinions and observations alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.97, DC 6847, with respect to determining the severity of his service-connected disability because many of these criteria are based on the results of objective testing, not instead mere subjective lay opinion.

The Board also has considered whether other DCs relating to disabilities or diseases of the respiratory system are applicable to the Veteran's obstructive sleep apnea.  See again Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular DC is "completely dependent on the facts of a particular case.").  In this case, however, there are no other DCs that apply, including, as noted above, DC 8108.

As well, the Board has considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  An extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).


The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

However, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the Rating Schedule.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  In Thun, the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating.  First, the Board must determine whether his disability picture is contemplated by the Rating Schedule.  If so, the Rating Schedule is adequate and an extra-schedular referral is unnecessary.  If, however, his disability level and symptomatology are not contemplated by the Rating Schedule, the Board must turn to the second step of the inquiry, that is, whether his exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  As mentioned, these include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extra-schedular rating.

In this case, the Board concludes the Veteran's service-connected obstructive sleep apnea has not been so unusual or exceptional in nature as to render the assigned schedular rating inadequate.  He has submitted no evidence showing that his condition markedly interferes with his employment status beyond that contemplated by the assigned evaluation, and there is also no indication it has necessitated frequent or, indeed, any periods of hospitalization.  The symptomatology shown during the appeal period has been fully contemplated by the DC considered above and is consistent with the assigned evaluation.  As such, referral for assignment of an extra-schedular evaluation in this case is not in order.  Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra.

In summary, and for the aforementioned reasons, the Board finds that the evidence of record is against the Veteran's claim for an increased disability evaluation for his
service-connected obstructive sleep apnea.  As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3 is inapplicable.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Assignment of a "staged" ratings equally is unwarranted as the Veteran's symptoms during the course of this appeal have not been shown to be of greater severity than the currently-assigned rating.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

B.  Entitlement to Service Connection for an Acquired Psychiatric Disorder other than PTSD, Including as Secondary to the Service-Connected Obstructive Sleep Apnea

In order to establish a right to compensation for a present disability, a Veteran must show:  "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or an 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).    

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (2012). "In line of duty" means any injury or disease incurred or aggravated during a period of active military service, unless such injury or disease was the result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, was the result of the Veteran's abuse of alcohol or drugs.  38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301 (2012).  "Alcohol abuse" is defined by 38 C.F.R. § 3.301(d) as the use of alcohol beverages over time, or such excessive use at any one time, sufficient to cause disability or death of the user.

The Federal Circuit Court recently has held that, for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, he can establish entitlement to service connection by demonstrating a continuity of symptomatology since service, but only if the disease claimed is defined as a "chronic disease" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011).  (emphasis added).  For disabilities that are not listed as chronic under § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).

Additionally, service connection for certain diseases, such as psychoses, may be established on a presumptive basis by showing the disease manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012).  This presumption is rebuttable by probative evidence to the contrary, however.

According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders:  brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Turning now to the facts of this particular case.  The Veteran contends that he suffers from an acquired psychiatric disorder (claimed as a depressive disorder) as a result of his obstructive sleep apnea.  Specifically, he has reported that he does not sleep well and has been more depressed.  He also has claimed his BIPAP mask does not work well.  See DRO hearing transcript, February 2008.

Service connection is permissible on this alleged secondary basis if it is shown his service-connected obstructive sleep apnea either caused or is aggravating an acquired psychiatric disorder, including especially his purported depression.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

As an initial matter, review of his service treatment records (STRs) is unremarkable for any suggestion of complaints of, treatment for, or a diagnosis of an acquired psychiatric disorder, including depressive disorder.  There also is no nexus opinion of record suggesting his acquired psychiatric disorder is the direct result of any event, illness or injury in service.  Moreover, as there is no probative evidence that he was diagnosed with a psychosis within one year of his separation from service, service connection on a presumptive basis is not warranted either.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (indicating the Board must consider all potential bases of entitlement to service connection, not just the basis specifically alleged).

Post-service treatment records show he has received intermittent  treatment for multiple acquired psychiatric disorders since 1995, including depression, psychosis, neurosis, dysthymia, and antisocial personality features, as well as cocaine and alcohol abuse.  Mental health clinic treatment records in December 1995 show he was complaining of musculoskeletal pains and was angry at the Veterans Home staff where he was residing for not giving him more pain medication.  In April 1997, it was noted that the main reason for his visit to the mental health clinic involved physical problems, including back and chest pain.  It was also noted that he was feeling sad about losing his job a month earlier and had been residing in a homeless shelter for four days.  In October 1998, he reported auditory hallucinations, depression, and feeling stressed because he had been evicted from his apartment.


VA treatment reports show that, in January 2007, he was taken to the emergency room after attempting to kill himself with an overdose of his medication while living in a homeless shelter; he added that he had become very depressed around the holidays.  Stressors included many medical problems, as well as the holidays, which brought memories of losses, including his wife and son three years earlier.  Between February and June 2007, he was hospitalized at the Northampton VA Medical Center ("VAMC") with an initial presenting diagnosis of depression after it was noted that he had stopped taking his psychotropic medications.  Again, the treatment reports show that he had a long history of substance abuse, including alcohol and cocaine.  Subsequent treatment records show his participation in individual and group therapy at the VAMC.

In December 2008, the Veteran was afforded a VA mental disorders examination.  The examiner observed the Veteran had a long history of prior psychiatric hospitalizations due to a history of multiple suicide attempts and suicidal or homicidal ideations.  He also had a history of incarcerations, as well as estrangement from family and long periods of homelessness with financial difficulties.  In attempting to determine whether there was any connection between the Veteran's psychiatric disorders and his obstructive sleep apnea, the examiner specifically noted that, during the Veteran's February 2008 DRO hearing, there was a suggestion of a connection between a worsening of his depressive disorder as a result of his obstructive sleep apnea.  The Veteran was instructed to describe these difficulties to his mental health care providers for the purposes of documentation to support his service-connection claim.  The examiner noted that, thereafter, the Veteran began expressing his concerns about problems using his CPAP/BIPAP machine and his worry that his snoring may affect his house situation and his feeling discouragement and depression secondary to this issue.  When asked why he was depressed, the Veteran said he was "a slave to the walker and oxygen."  It was noted that he was morbidly obese and frequently felt bad about himself and his limitations due to his medical conditions and obesity.  When the clinician specifically asked him about his sleep, he replied that when the breathing machine was working well, he slept adequately.  He also expressed his belief that his depression had begun in 1978 following the death of his mother and became tearful about his guilt over not being able to find her the proper treatment, as well as anger issues related to his relationship with family members.  The VA examiner diagnosed him with depressive disorder, NOS; psychotic disorder, NOS; and cocaine and alcohol dependence in full remission.  But he determined there was little evidence indicating a connection between the Veteran's current and past history of experiencing psychotic and depressive symptoms and history of rather severe substance use with his history of obstructive sleep apnea.  He noted that, while treatment notes showed periods of worsening mood secondary to problems with the use of the CPAP machine, this in no way indicated a causal connection between sleep apnea and the Veteran's long-standing mental health problems.  Rather, this commenting clinician concluded it appeared more likely the Veteran's current circumstances were mostly impacted by his history of significant substance abuse, his level of obesity, and the consequences of those factors taken together.

Based on an aggregate reading of the relevant evidence, the Board concludes that the most probative (competent and credible) of this evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, including especially depressive disorder secondary to his obstructive sleep apnea.  As explained, there is no probative evidence linking any of his diagnosed psychiatric disorders either directly or presumptively to his military service or, as is being specifically alleged, to his service-connected obstructive sleep apnea either in the way of causation or aggravation.  Significantly, two VA examiners found there was no link between his psychiatric disorders and obstructive sleep apnea.  The December 2008 VA examiner concluded instead that the Veteran's current disorders were likely the result of his significant history of substance abuse, morbid obesity, and the consequences of those factors together.

In addition to the medical evidence, the Board has considered the Veteran's statements and testimony during his DRO hearing.  The Court has repeatedly held that laypersons, such as the Veteran, are competent to describe symptoms of which they have first-hand knowledge.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, there is no evidence the Veteran has the medical knowledge or training that would permit him to link a complex psychiatric disorder to obstructive sleep apnea.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a claimant is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  As such, his statements and testimony in this regard are incompetent.  

Finally, with regards to his substance abuse and its possible relationship to his acquired psychiatric disorders, his STRs do not mention any drug or alcohol abuse, whereas his post-service treatment records document a lengthy history of alcohol and drug (cocaine) abuse.

The law prohibits the granting of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service.  Pub. L. No. 101-508, § 8052, 104 Stat. 1388 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998).  However, a Veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability - assuming that disability, itself, is not the result of his willful misconduct.  Moreover, alcohol abuse, unless it is a secondary result of an organic disease or disability, is considered willful misconduct.  38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3) (2012).  See also Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).  In Allen, the Federal Circuit Court indicated that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."  Id., at 1381.  The Federal Circuit Court further stated that such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing."  Id.


So, to summarize, where drug and alcohol abuse is at issue, service connection is precluded "in two situations:  (1) for primary alcohol abuse disabilities; and (2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse."  Allen, at 1376.  Service connection is not precluded if alcohol abuse is secondary to a service-connected disability, such as if the Veteran has, as an example, PTSD or other mental impairment and used alcohol and/or drugs to self medicate.  Id.  Even if a Veteran has a service-connected disability, however, service connection would be precluded for the alcohol or drug abuse disability if it is actually due to willful action rather than the result of the 
service-connected disability.  Id., at 1378.

Here, the record contains no competent medical evidence indicating the Veteran's alcohol and drug abuse was masking a psychiatric disorder.  Neither he nor his representative has established the requisite expertise to establish this fact.

Accordingly, the Board concludes that the most probative evidence of record is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, including especially depressive disorder, on a direct-incurrence basis.  Additionally, as there is no probative evidence that the Veteran was diagnosed with a psychosis within one year of separation from service, service connection also is unwarranted on a presumptive basis.  And, lastly, as it also has not been shown that his service-connected obstructive sleep apnea caused or aggravated his psychiatric disorder, including especially his depressive disorder, the requirements are not alternatively met for secondary service connection.

In arriving at the decision to deny this claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule.  However, as there is not an approximate balance of evidence for and against this claim, this rule is inapplicable in this case.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


C.  Entitlement to Service Connection for PTSD

Service connection for PTSD, in particular, requires:  (1) medical evidence establishing a diagnosis of the condition, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor.  See 38 C.F.R. § 3.304(f).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).  With regards to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish the occurrence of the claimed stressor varies depending on the circumstances of the stressor and the nature of the Veteran's service.  There are exceptions to the general pleading and proof requirements depending on the circumstances of his service, notably, if there was a PTSD diagnosis during his service (subpart (f)(1)), if he engaged in combat against an enemy force ((f)(2)), if he had fear of hostile military or terrorist activity ((f)(3)), if he is a former prisoner of war (POW) ((f)(4)), of if there is an allegation of personal or sexual assault ((f)(5)).

The DSM-IV provides two requirements as to the sufficiency of a stressor:  (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others," and (2) "the person's response [must have] involved intense fear, helplessness, or horror."  DSM-IV at 427-28.  These criteria are no longer based solely on usual experience and response, but are individualized (geared to the specific individual's actual experience and response).  Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition.  Cohen v. Brown, supra.


The newer DSM-V has been officially released.  However, 38 C.F.R. § 4.130 still explicitly refers instead to the DSM-IV.  The regulation legally requires the Board to consider this earlier version of the DSM until such time as the regulation is changed.  There is a regulation change in the works that would change the regulation to reference "the current version of the DSM."  But it is unclear when that proposed change will be published.  Regardless, in the meantime the Veterans Benefits Administration  (VBA) and Veterans Health Administration (VHA) have essentially agreed that their target date for moving to DSM-V is October 1st, coinciding with the beginning of the new fiscal year.  It therefore is important to bear in mind that the regulation still explicitly refers to the DSM-IV, regardless of the fact that the Board may begin seeing private evidence instead referring to criteria under the succeeding DSM-V.

In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD.

If the evidence establishes that the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  See 38 C.F.R. § 3.304(f)(2); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012).  Otherwise, except for the other notable exceptions mentioned, the law generally requires independent verification of a claimed stressor.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998).

The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), (f), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe, or hostile unit or instrumentality.  VAOPGCPREC 12-99.  Mere service in a combat zone does not establish that a Veteran actually engaged in combat with the enemy.  Id.  Service department evidence that a Veteran engaged in combat or that a Veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor.  Id.

Where a determination is made that a Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the 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).  Thus, he must corroborate his testimony by credible supporting evidence.  See Stone v. Nicholson, 480 F.3d 1111, 1114 (Fed. Cir. 2007) (finding no error in Board determination that a non-combat Veteran's "own statements cannot serve as 'corroboration' of the facts contained in those statements.").  In such cases, the record must include service records or other credible evidence that supports and does not contradict his testimony.  Doran v. Brown, 6 Vet. App. 283, 289 (1994).

Moreover, a medical opinion diagnosing PTSD after the fact does not suffice to verify the occurrence of the claimed in-service stressor(s).  See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Cohen v. Brown, 10 Vet. App. 128, 42 (1997).  There is an exception to this rule when the alleged stressor involves personal or sexual assault, i.e., military sexual trauma (MST), allowing for sources other than the Veteran's records to corroborate an account of a stressor incident, including indication of behavioral change.  See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999); YR v. West, 11 Vet. App. 393, 398-99 (1998).

Because the question of whether a Veteran was exposed to a stressor in service is a factual one, VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts.  Wood v. Derwinski, 1 Vet. App. 190, 192 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991).


The Veteran contends he has PTSD as a result of being "picked at" during his service.  See statement, May 2007.  He also says that he was the victim of "blanket part[ies]" in his barracks, when he was hit with shoes and books.  See stressor statement, November 2007.  The Court has set a relatively low bar for interpreting a claim for PTSD as one involving a personal assault stressor for which the provisions of § 3.304(f)(5) are applicable.  See, e.g., Bradford v. Nicholson, 20 Vet. App. 200 (2006) (Veteran alleged that his sergeant had kicked him down a flight of stairs).

Consider also that the provisions of 38 C.F.R. § 3.304(f) were amended, effective July 13, 2010.  See 75 Fed. Reg. 39843-52 (July 13, 2010).  The primary effect of the amendment, which relaxes the evidentiary standard for establishing 
in-service stressors in PTSD claims, is the elimination of the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity."  In place of corroborating the reported stressors, VA will now rely on a Veteran's lay testimony alone to establish the occurrence of a stressor related to hostile military or terrorist activity, provided that (1) the claimed stressor is consistent with the places, types and circumstances of service, (2) 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 (3) the Veteran's symptoms are related to the claimed stressor.  Id.

For the purpose of this regulation, "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 ("IED"); 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.  See new subpart (f)(3).


This new subpart (f)(3) only applies if a Veteran's claimed in-service PTSD stressor relates to an event or circumstance that a Veteran experienced, witnessed, or was confronted with and that was perpetrated by a member of an enemy military or by a terrorist.  Therefore, this new subpart (f)(3) does not apply where a Veteran, instead, alleges an in-service assault by a fellow service member, although, as mentioned, this still would require alternatively considering his claim under subpart (f)(5).  See Hall v. Shinseki, No. 10-4309 (Fed. Cir. June 7, 2013).

The Veteran's DD Form 214 does not contain any indication he was awarded any citations or medals indicative of combat service, and he has not claimed to have participated in combat.  Rather, he claims that he has PTSD as a result of being teased and "picked at" (picked on) during his service by his fellow servicemen in his barracks, including in the way of a "blanket party", presumably because of their belief he was holding the unit back.  As such, his claimed stressor clearly does not meet the regulatory definition of "fear of hostile military or terrorist activity."  Accordingly, the regulation revision does not apply in this case and he may not avail himself of the relaxed evidentiary standard for establishing his in-service stressor.

And irrespective of whether he has alternatively met the pleading and proof requirements of subpart (f)(5), on the premise that his alleged stressor instead involves a personal assault, more fundamental to his claim is the first or "current disability" requirement.  The most essential requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992) ("[i]n the absence of proof of a present disability, there can be no valid claim" of service connection); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

The Veteran's STRs are unremarkable for complaints of, treatment for, or a diagnosis of PTSD, so the Board need not consider 38 C.F.R. § 3.304(f)(1).  But this is to be expected since he served on active duty from April 1971 to April 1974, and VA did not adopt the PTSD nomenclature until 1980 or thereabouts.

He began seeking treatment for mental disorders at least as early as 1995, but there is no indication he ever has received a valid diagnosis of PTSD according to the criteria of the DSM-IV.  Although a May 2006 VAMC treatment report shows that he received a positive PTSD "screen" during a mental health clinic assessment, this does not appear to have been a diagnosis in compliance with the DSM-IV; there is no indication that he had undergone a formal PTSD workup with diagnostic testing.  Furthermore, even though he was afforded a VA psychiatric evaluation in December 2008 for his claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, the examining clinician determined the Veteran suffered from other types of mental illness - depressive disorder, NOS; psychotic disorder, NOS; and cocaine and alcohol dependence in full remission.  The examiner did not diagnose PTSD or otherwise indicate its presence.

In addition to the medical evidence, the Board also has considered the Veteran's lay statements and testimony during his DRO hearing.  But just as in the prior discussions, he does not have the necessary medical training and expertise to determine whether he has PTSD according to the DSM criteria.  This determination, instead, is based on the results of objective testing and clinical evaluation, not mere subjective lay opinion.

Thus, without this requisite diagnosis, his claim of entitlement to service connection for PTSD must be denied.  And as there is not an approximate balance of evidence for and against his claim, including on this threshold preliminary point, the "benefit of the doubt" rule is inapplicable.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).


ORDER

The claim of entitlement to a disability rating higher than 50 percent for the obstructive sleep apnea is denied.

The claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, including depressive disorder as secondary to the service-connected obstructive sleep apnea, is denied.

The claim of entitlement to service connection for PTSD is denied.


____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs