Citation Nr: 1754537 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 15-42 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for problems sleeping to include obstructive sleep apnea. 4. Entitlement to service connection for a back condition. 5. Entitlement to service connection for a right knee condition. REPRESENTATION Veteran represented by: Daniel Nodurft, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1953 to January 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. Jurisdiction was subsequently transferred to New Orleans, Louisiana. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. An April 1957 rating decision denied the Veteran service connection for an acquired psychiatric disorder, and the decision became final after the Veteran did not submit a timely notice of disagreement or additional evidence within one year of notification of the denial. 2. New and material evidence raising a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder has been associated with the record since the April 1957 rating decision. 3. The Veteran is presumed to have been psychiatrically normal upon entrance into service, and a medical nexus exists between a current acquired psychiatric disorder and an in-service incurrence of psychiatric symptoms. 4. The Veteran testified at a personal hearing before the Board in May 2017, and, he expressed his desire to withdraw his claim for service connection for a back condition. 5. The Veteran testified at a personal hearing before the Board in May 2017, and, he expressed his desire to withdraw his claim for service connection for a right knee condition. 6. The Veteran's obstructive sleep apnea is not shown to have been diagnosed within a year of service, and the evidence of record does not suggest that the Veteran's sleep apnea either began during or was otherwise caused by his military service. 7. A sleep disorder, other than obstructive sleep apnea, has not been diagnosed. CONCLUSIONS OF LAW 1. The April 1957 rating decision denying the Veteran's claim for service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 709 (1952); Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008. 2. The criteria for reopening the Veteran's previously denied claim of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 4. The criteria for withdrawal of the issue of entitlement to service connection for a back condition have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of the issue of entitlement to service connection for a right knee condition have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. Criteria for service connection for a sleep disability, to include obstructive sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties 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, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. 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, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a Board hearing. The Veteran was also provided with a VA psychiatric examination, but no opinion was obtained with regard to the claim for sleeping problems. However, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). The record in this case is negative for any competent indication, that the Veteran's obstructive sleep apnea even might have begun during the Veteran's military service and it was not diagnosed for more than 50 years after separation from service. Even when asked about the claim at his hearing, the Veteran did not provide any reasonable explanation as to why the condition might have begun during service. As such, the evidence is insufficient to trigger VA's duty to provide an examination or obtain an opinion. See Waters, 601 F.3d 1274. 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. New and Material Evidence: Acquired Psychiatric Disorder The RO issued a rating decision in April 1957 which denied the Veteran's claim for service connection for an acquired psychiatric disorder. The RO found that the evidence of record was not sufficient to demonstrate that the Veteran's diagnosed acquired psychiatric disorder was related to a period of service. The Veteran failed to submit a notice of disagreement (NOD) or submit additional evidence within one year, and, therefore, the April 1957 rating decision is final. Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008. The Veteran filed to reopen his claim, and, in July 2013, the RO denied the claim. The Veteran appealed. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007). Since the April 1957 decision, the Veteran was provided a VA examination in May 2013 which indicated that it is at least as likely as not that the Veteran's acquired psychiatric disorder was either caused by or aggravated by beatings that he had incurred during his period of service. Therefore, new and material evidence has been submitted, and the claim shall be, and is hereby, reopened. Service Connection: Acquired Psychiatric Disorder The Veteran is seeking service connection for an acquired psychiatric disorder. Both VA and private treatment records show that the Veteran has a currently diagnosed acquired psychiatric disorder. The Veteran testified at a personal hearing before the Board that he was the victim of multiple assaults during his period of service. See Transcript. As previously noted, the Veteran was provided a VA examination in May 2013. The May 2013 VA examination indicated that the Veteran's acquired psychiatric disorder may have preexisted service, and that it was either caused by or aggravated by beatings that the Veteran incurred during his period of service. The Board must, therefore, address whether or not the Veteran's acquired psychiatric disorder preexisted service. The Veteran's entrance examination found him to be psychiatrically normal. In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); 38 U.S.C. § 1111. Nevertheless, the May 2013 VA examination indicated that it is at least as likely as not that, if the acquired psychiatric disorder preexisted service, then it was aggravated by a period of service. As such, the evidence of record is not sufficient to demonstrate that the condition did preexist service and was not permanently aggravated by a period of service. Therefore, the presumption of soundness has not been adequately rebutted, and the Veteran is presumed to be psychiatrically normal upon enlistment into military service. Less than a year after separation, in December 1956, the Veteran was admitted to the hospital with a depressive reaction. In January 1957, the Veteran was hospitalized for possible schizophrenia. As described, the weight of the evidence indicates that the Veteran is entitled to service connection because he has a current diagnosis of an acquired psychiatric disorder; he provided credible testimony of an in-service incurrence; and a VA examiner opined that the currently diagnosed acquired psychiatric disability was caused by the in-service incurrence. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to an acquired psychiatric disorder is granted. Service Connection: problems sleeping to include obstructive sleep apnea The Veteran is seeking service connection for a problems sleeping to include obstructive sleep apnea. The Veteran's contention is essentially that he began having problems sleeping in service, stemming from being beaten during a blanket party in basic training and that he also had difficulty sleeping while being posted in Korea. The Veteran was diagnosed with obstructive sleep apnea in 2014 and his representative has argued that a test for sleep apnea was not available until the 1960s. However, when asked at his Board hearing what symptoms he experienced in service that might be representative of sleep apnea, the Veteran was not able to offer any. Moreover, while sleep apnea was tested for until the 1960s, the Veteran was not actually diagnosed with it until 2014, approximately 50 years after the condition was recognized by the medical community. The Veteran has not submitted any competent evidence to suggest that his sleep apnea either began during or within a year of his service, or was otherwise caused by his military service. As such, the criteria for service connection for sleep apnea have not been met. To the extent the Veteran reports difficultly sleeping as a result of an acquired psychiatric disability, the Board notes that impaired sleep is one psychiatric symptom that is recognized by the VA regulations. The Veteran does not appear to have been diagnosed with a sleeping disability other than sleep apnea. As such, service connection for problems sleeping to include obstructive sleep apnea is denied. Withdrawal: Back Condition & Right Knee Condition The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the issues of entitlement to service connection for a back condition and a right knee condition at a personal hearing before the Board in May 2017 and, hence, there remain no allegations of errors of fact or law for appellate consideration in regard to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and the issues of entitlement to service connection for a back condition and a right knee condition are dismissed. ORDER New and material evidence having been received, the Veteran's claim for service connection for an acquired psychiatric disorder is reopened. Service connection for an acquired psychiatric disorder is granted. Service connection for problems sleeping to include obstructive sleep apnea. Is denied. The issue of entitlement to service connection for a back disorder is dismissed. The issue of entitlement to service connection for a right knee condition is dismissed. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs