Citation Nr: 1722425 Decision Date: 06/16/17 Archive Date: 06/29/17 DOCKET NO. 12-19 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, (hereafter referred to as "sleep apnea"). 2. Entitlement to service connection for a current psychiatric disability, to include post-traumatic stress disorder (PTSD) and sleep disturbance labeled as insomnia, (hereafter referred to as a "psychiatric disability"). REPRESENTATION Appellant represented by: Brandi Smith, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Meehan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1987 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Roanoke, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2016, the Veteran presented testimony at a Board hearing via video conference before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran's sleep apnea is unrelated to service. 2. The Veteran's psychiatric disability is unrelated to service. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2016). 2. A psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 4.125 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided. The Veteran initially claimed at his Board hearing that he never received notice for a scheduled VA examination; however, as discussed below, the Board has granted numerous opportunities allowing him additional time to submit evidence in lieu of a VA examination. Therefore, the Board finds no prejudice with regard to either the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained, and the Veteran was afforded a hearing before the Board. The Board acknowledges the Veteran has not been afforded a VA examination with regard his PTSD claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third element could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was scheduled for a VA examination relating to his PTSD claim in May 2011 but did not report. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause fails to report for such examination, or reexamination, action in accordance with this section shall be taken. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. At his October 2016 Board hearing, the Veteran claimed that he did not receive any notice. In order to afford the Veteran the benefit of all reasonable doubt, the Board subsequently held the record open for 60 days post-hearing to allow the Veteran to submit private medical evidence. In December 2016, the Veteran's attorney requested an extension, and the Board extended the deadline an additional 90 days. In March 2017, the Veteran's attorney once again requested an extension or remand for a VA examination citing the difficulty of obtaining an opinion. The Board notes the extensive amount of additional time granted to obtain the opinion, and the multitude of opportunities afforded to the Veteran. The Board wishes to emphasize that, "[t]he duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that the Veteran has not produced good cause and therefore denies the motion for an extension or remand. See 38 U.S.C.A. § 7102(a) (West 2014). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection The Veteran is seeking service connection for sleep apnea on the basis that it manifested during service; and for a psychiatric disability due to a traumatic event that occurred while serving in Egypt. VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the appellant's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury (a "stressor" in the case of PTSD); and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a), (b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For specific enumerated diseases designated as "chronic," there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. This presumption applies to veterans who served 90 days or more during a period of war or after December 31, 1946. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Where one of the enumerated chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic, under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While "psychoses" are included among the enumerated chronic diseases, PTSD, insomnia, and any of the Veteran's previously diagnosed psychiatric disabilities on record are not considered psychoses under the regulation term as defined under 38 C.F.R. § 3.384. Psychoses includes any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, of the American Psychiatric Association (DSM-5): (a) brief psychotic disorder; (b) delusional disorder; (c) psychotic disorder due to general medical condition; (d) Other Specified Schizophrenia Spectrum and Other Psychotic Disorder; (e) schizoaffective disorder; (f) schizophrenia; (g) schizophreniform disorder; (h) shared psychotic disorder; and (i) substance/medication-induced psychotic disorder. Id. The regulation also does not contemplate sleep apnea as a chronic disability. Accordingly, there is no presumption of service connection for the claimed disabilities, and the provisions regarding continuity of symptomatology are thus inapplicable. Generally, lay evidence is competent with regard to identification of a disease with "unique and readily identifiable features'" which are "capable of lay observation." See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Laypersons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service that supports a later diagnosis by a medical professional. However, a layperson is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see 38 C.F.R. § 3.159(a)(2). Sleep Apnea Service treatment records are negative for any findings indicative of sleep apnea or any other disability manifested by sleep disturbances suffered during service. The earliest record of the Veteran's sleep apnea was in April 2007, over 12 years after discharge from service. In December 2008, the Veteran reported that his wife had told him that he would stop breathing several times nightly, that he felt sleepy during the day, and snored. Notably, the Veteran also stated that he had a financially tough year, and that he had gained some weight. The Veteran asserted to his physician that the symptoms began the year prior, which is consistent with the April 2007 medical evidence; the earliest evidence of record indicating sleep apnea. In reaching this decision the Board has considered the Veteran's lay statements and contentions of record. In this case, the Veteran is competent to report symptoms of his claimed sleep apnea, such as snoring or daytime sleepiness. However, he is not competent to diagnose sleep apnea or offer an opinion as to etiology because it requires performance of a specialized examination and diagnostic testing. Besides his current assertion, the Veteran has not provided any medical evidence to substantiate his claim, i.e., that he has had sleep apnea since active duty service, from which he was discharged more than a decade prior to diagnosis. It is the responsibility of any VA claimant to present and support a claim for benefits. See 38 C.F.R. § 5107(a) (West 2014). Despite receiving notice that identified evidence that could substantiate his claim, and having been afforded extra time to gather this evidence, the Veteran has yet to provide such evidence or provided information that would warrant any further development. Although post-service VA records reflect a current diagnosis of sleep apnea, the weight of the evidence of record does not support such a diagnosis prior to April 2007. Thus, the Board finds a preponderance of the evidence weighs against the Veteran's claim of service connection for sleep apnea. Psychiatric Disability Service treatment records are negative for any findings of PTSD, or any other psychiatric disorders during service. Starting in December 2008, post-service VA medical records show a variety of diagnoses including depressive disorder not otherwise specified (NOS), anxiety disorder NOS, and adjustment disorder with mixed anxiety and depressed mood, dysomnia NOS, with partner relational problem. The Veteran was found to not meet the criteria for PTSD. None of these records indicate any diagnosed psychiatric disorder is related to service. The Veteran's claim was denied in November 2009 and again in April 2010. In April 2011, the Veteran filed a notice of disagreement. As described previously, VA then scheduled a psychiatric evaluation for May 2011, for which the Veteran did not report. The claim was denied however, because the Veteran does not have any diagnosis of PTSD on record, and there is no evidence linking any of the Veteran's diagnosed psychiatric disabilities to service. As discussed in depth, the undersigned VLJ left the record open for 60 days so that the Veteran could gather medical evidence linking both the Veteran's sleep apnea, and psychiatric disability to service. The Veteran was then afforded a 90-day extension on January 6, 2017. To date, VA has not received any further evidence supporting the Veteran's claims for service connection. The Board has considered the Veteran's assertions. The Veteran is indeed competent to report his personal observations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is not competent, however, to diagnose a psychiatric disability based on observed physical symptoms, given the medical complexity of such diagnoses. The Board finds a preponderance of the evidence weighs against the Veteran's claim of service connection for a psychiatric disability. The first record of any such disability is found in a December 2008 post-service VA medical record. In it, the treating physician suggests that as opposed to being related to service, the Veteran's psychiatric disability could be linked to his employment and familial situation at the time. In reaching both these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is inapplicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for a current psychiatric disability, to include PTSD and sleep disturbance labeled as insomnia, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs