Citation Nr: 1751499 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-36 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and depression. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1978 to October 1986. These matters come to the Board of Veterans' Appeals (Board) from a May 2013 ratings decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing in St. Petersburg, Florida. The transcript is of record. These matters were Remanded in July 2017 for further development. The matters have returned for adjudication. An Informal Hearing Presentation (IHP) was not prepared The American Legion subsequent to the development that followed the Remand. However, in September 2017, The American Legion submitted a thirty day waiting period waiver stating that they do not have any additional evidence regarding the Veteran's appeal. They asked for the Veteran's case to be forwarded to the Board immediately and to proceed with adjudication of the appeal. The Board construes this as a waiver for submitting an IHP as well. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A diagnosis of schizophrenia has not been established at any time during the appeal period; and, the Veteran's depression was not incurred in or caused by service. 2. The Veteran's sleep apnea was not incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail. On the other hand, if the preponderance of the evidence is against the Veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as psychoses, are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). As discussed above, psychoses are qualifying chronic diseases. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Acquired Psychiatric Disorder Service treatment records did not indicate that the Veteran had signs, symptoms, or a diagnosis of depression or any other psychiatric disorder while in service. The Veteran denied depression or excessive worry in his separation examination and the examiner did not find any psychiatric abnormalities. The earliest mention of a psychiatric disorder in the Veteran's medical records is around 2010, when the Veteran had a diagnosis of depression with psychotic features. Medical records from 2013 describe the Veteran as having "mild depressive symptoms" without psychotic features. The Veteran completed depression screening in November 2014 with minimal symptoms and the doctor wrote "not depression." In March 2015, the Veteran denied any depressive symptoms and the doctor wrote that his mental health was "good" and that there was "no depression." Later in 2015, the Veteran denied experiencing any psychological trauma to the doctor and the doctor noted that the Veteran did not have any psychoses. In March 2016, the Veteran was again diagnosed with depression. The Veteran testified in April 2017 that he was diagnosed with schizophrenia in 1987. He reported that a friend had been shot next to him after service in 1987 and that affected him with nightmares. The Veteran also testified that he witnessed a friend being run over by a car while in service. The Veteran was afforded a VA psychiatric examination in July 2017. The examiner diagnosed the Veteran with major depressive disorder, recurrent, moderate, with anxious distress. She opined that the Veteran's depression was less likely than not attributable to service. She explained that the Veteran made no mention during her evaluation of the traumatic events to which he testified in April, but did mention a "blanket party" and being stabbed in service. In addition, although the Veteran testified in April that he began treatment within a year from service, he repeatedly told her that he did not begin treatment until 1989 to 1991, which was three to five years after service. The Veteran also reported to the examiner that his depression related to his health conditions and family relationship conflicts instead of the incidents in service. Taking these together, the examiner concluded that the depression was less likely than not related to service. The Veteran does not have a diagnosed psychosis such as schizophrenia. Although the Veteran claimed to have been diagnosed with schizophrenia, his medical records included multiple examinations that did not indicate schizophrenia. Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), but diagnosing schizophrenia falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). It is not a condition that is readily amenable to mere lay diagnosis or probative comment. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical records are, in any event, given substantially more weight and the weight of the evidence indicates that the Veteran does not have schizophrenia and has not had it at any point during his claim. The Veteran has been diagnosed with depression. Although there is a mention of depression with psychotic features, this notation was not within one year of service, and the Veteran has now indicated that he was not treated until several years after service. The weight of the evidence, therefore, is against a finding that the Veteran had psychotic symptoms within a year from service. Accordingly, service connection under the chronic presumption need not be considered. The weight of the evidence is also against a nexus between the Veteran's depression and service. Although the Veteran testified that he had been seen and diagnosed within a year of service, he later told doctors that he was not seen for depression until several years later. The later statement is weighed more heavily as it was being made for purposes of a diagnosis. See Fed. R. Evid. 803(4) (excepting statements made for medical diagnosis or treatment from being excluded as hearsay due to their generally recognized credibility); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("recourse to the [Federal Rules of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."). The multi-year delay in seeking treatment weighs against service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (allowing the Board to consider "evidence of a prolonged period without medical complaint"). The Veteran has also been inconsistent with his reports of problems. At the hearing, he testified to a post-service shooting and an in-service accident. But at his examination, the Veteran attributed his depression to his family relationship and medical problems as well as in-service incidents involving a "blanket party" and being stabbed. There was no mention the shooting or in-service car accident. Nor do his other medical records mention the car accident in service. This weighs against a connection between the car accident and the Veteran's current depression. In addition, the shooting occurred after service, so even if the depression related to that the Veteran could not be service connected. With respect to the in-service incidents involving a "blanket party" and being stabbed, the Board finds these newly reported stressor events to be highly suspect. There is no mention of either in the service records. Had the Veteran been stabbed, there should have been some report of the incident or injury in his medical records. There is likewise no documentation of any incident that could be described as a "blanket party." There is also no evidence of these events until the examination. In this regard, the Veteran has provided no explanation as to why he made no reference to either incident when he testified before the Board in April 2017. Questions to this point were essentially posed to the Veteran at that time. Further, the 2017 VA examiner opined that the Veteran's depression was not related to service. The opinion was based on a review of the file, examination, and interview of the Veteran. The Veteran reported to her that his depression related to his current situation rather than service. This weighs strongly against service connection. Taken together, the evidence weighs against a finding that it is at least as likely as not that the Veteran's depression related to service. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for depression must therefore be denied. Sleep Apnea Service treatment records did not mention trouble sleeping and the Veteran denied trouble sleeping at his exit examination. The August 2010 Regional Office rating decision that originally denied sleep apnea did so despite stating that service treatment records dated July 15, 1986 "reveal[ed] subjective complaints of daytime somnolence" and reported a sleep study in service. Based upon other objective indicia, however, such as the fact that the paragraph starts in the middle of the sentence and provides the wrong date for the separation examination, these statements are found to be a typographic error and not related to this case. The Veteran's treatment records did not include a report of daytime somnolence or an in-service sleep study. In May 2012, the Veteran wrote that he believed his sleep apnea occurred because of a stabbing that has resulted in flashbacks and nightmares preventing his sleep. In January 2013, the Veteran wrote "sleep apnea is secondary to stabbing, flashbacks, and nightmares." The Veteran was afforded a VA examination in September 2015. The examiner reported that the Veteran had a sleep study performed in March 2012 and it found snoring with mild obstructive sleep apnea-hypopnea. The Veteran was afforded another VA examination in September 2017. The examiner opined that it was less likely than not that the Veteran's sleep apnea related to service. The examiner explained that the Veteran had reported on different occasions that he was first diagnosed with sleep apnea in either 2002 (10 years prior to 2012) or 2005. Both were more than a decade after service, and there was no record of sleep disturbances during service or in the following years. The weight of the evidence is against a finding that the Veteran's sleep apnea was incurred in or caused by service. The Veteran did not seek treatment for sleep apnea for years after service. This weighs against service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (allowing the Board to consider "evidence of a prolonged period without medical complaint"). The VA examiner opined that the Veteran's sleep apnea was unrelated to service and provided the above rationale. This weighs strongly against service connection. The Veteran testified that he believed his sleep apnea was caused by his nightmares and flashbacks. The Veteran, however, has been diagnosed with obstructive sleep apnea, which is defined as "a form of sleep apnea involving a physical obstruction in the upper airways." Mosby's Medical Dictionary, 8th edition. S.v. "obstructive sleep apnea." Retrieved November 1 2017 from https://medical-dictionary.thefreedictionary.com/obstructive+sleep+apnea. Nightmares and flashbacks are not a physical obstruction. Even if they could be related, the cause of the Veteran's physical obstruction is not amendable to lay etiological opinions, and the medical professional opined against a connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The weight of the evidence is against a finding that the Veteran's obstructive sleep apnea was incurred in or caused by service. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for sleep apnea must therefore be denied. (ORDER ON NEXT PAGE) ORDER Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and depression is denied. Entitlement to service connection for sleep apnea is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs