Citation Nr: 1757528 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-13 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for depression, to include as secondary to service-connected obstructive sleep apnea. 2. Entitlement to service connection for depression, to include as due to service-connected obstructive sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1980 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in November 2011 and March 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Although the RO appears to have reopened the previously denied claim for service connection for depression in its rating decisions, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2012) to address the question of whether new and material evidence has been received to reopen the service connection claim. That matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate such on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received-and, given the favorable decision on the request to reopen-the Board has characterized the appeal as encompassing the matters set forth on the title page. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2016. A transcript of that hearing has been associated with the record. FINDINGS OF FACT 1. In a decision issued in June 2006, the RO denied service connection for depression, as due to service-connected obstructive sleep apnea. Although informed of the decision that same month, he did not perfect an appeal and no pertinent exception to finality applies. Therefore, the June 2006 decision is final. 2. Evidence added to the record since the final June 2006 denial is not cumulative or redundant of the evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for depression. 3. The most probative evidence of record indicates that the Veteran does not have depression that is caused by his service-connected obstructive sleep apnea. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied the Veteran's claim of entitlement to service connection for depression, as due to service-connected obstructive sleep apnea, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for depression. 38 U.S.C.A. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As the Board's decision to reopen the Veteran's claim of entitlement to service connection for depression is completely favorable, no further action is required to comply with the VCAA and its implementing regulations. Concerning the Veteran's reopened claim, neither he nor his representative have referred to any deficiencies in either VA's duty to notify or to assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Analysis New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision, and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). From the date of notification of an AOJ decision, the claimant has one year to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In making such a determination, new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran was denied service connection in a June 2006 rating decision, as the evidence did not show that the Veteran had a diagnosis of depression. The Veteran was informed of the decision in a letter dated June 2006, but did not perfect an appeal as to this issue. Therefore, the June 2006 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Since the June 2006 rating decision, the Veteran has submitted additional evidence, including medical opinions from various VA doctors concerning a link between his service-connected obstructive sleep apnea and depression. This evidence is new, in that it was not previously of record at the time of the June 2006 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standard set forth in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, thus warranting reopening of the claim of service connection for depression. Depression Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Claims for service connection require a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The United States Court of Appeals for Veterans Claims has found that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his depression was caused by his obstructive sleep apnea. By way of history, he was granted service connected for obstructive sleep apnea in a January 2004 rating decision; he contends that the poor quality of sleep caused by the service-connected condition caused him to be constantly tired, irritable, and depressed. There are 5 separate medical opinions of record which address the link, if any, between the Veteran's obstructive sleep apnea and his depression. In April 2011, the Veteran underwent a VA mental disorders examination. At that time, the VA psychologist found no evidence of a diagnosis of depression but instead a long-standing history of alcohol and drug abuse. She diagnosed the Veteran with cocaine dependence in early partial remission; alcohol dependence in early partial remission; marijuana abuse in remission; and depressive disorder not otherwise specified. She also found that the Veteran met the diagnostic criteria for a personality disorder with antisocial features. On the question of nexus between the Veteran's obstructive sleep apnea and depression, the psychologist concluded that the depression was not caused by or a result of the sleep disorder. As rationale, she indicated that the Veteran's complaints of fatigue, poor concentration, sleep disturbances and irritability were not indications of depression. His depressive disorder symptoms-a sad and hopeless mood, feelings of worthlessness and passive thoughts of self-harm-were due to his situational stressors; namely, years of cocaine, alcohol and marijuana abuse. The depression was clearly linked to these situational stressors, a fact supported by the Veteran's medical record showing a longstanding history of presenting only for treatment after relapsing on cocaine and having no other social supports. In a September 2011 VA treatment note, a VA doctor indicated that obstructive sleep apnea "can exacerbate [symptoms] of depression...a 50/50 probability." There was no rationale for this conclusion. In October 2011, the April 2011 VA psychologist again examined the Veteran. Again she concluded that the Veteran's depression was not caused by, or a result of, his obstructive sleep apnea. She reiterated her earlier conclusion that the Veteran's symptoms were accounted for by his medical conditions. Upon examination, the Veteran reported loss of comprehension and memory; the psychologist specifically found that the Veteran was able to read and retain information. In fact, she determined that the Veteran had memorized the diagnostic criteria for depressive disorders. A formal assessment of his attention, concentration and memory yielded no significant deficits with those abilities. While he reported being fatigued throughout the day, due to his poor quality of sleep, he also endorsed much activity throughout the day, and that the fatigue did not prevent him from carrying on with his normal routine. The VA psychologist diagnosed cocaine dependence in full remission, as well as alcohol dependence in full remission. She further diagnosed a personality disorder with antisocial and borderline features. Based on her two examinations of the Veteran, a review of the claim file and his VA records, the psychologist concluded that he did not have a mental health condition related to obstructive sleep apnea. She indicated that the results of the examination did not support a diagnosis of depression or any other mood disorder, as the Veteran was not experiencing persistent symptoms over an extended period of time. In December 2011, the Veteran changed his VA mental health provider. In a February 2012 mental disorders disability benefits questionnaire, his new VA doctor provided a diagnosis of major depressive disorder, recurrent, as well as cocaine and alcohol dependence in full sustained remission. She confirmed the obstructive sleep apnea diagnosis and opined that it was at least as likely as not that the Veteran's depression was caused by his obstructive sleep apnea. She provided no rationale for this conclusion. Finally, in March 2012, the VA psychologist who examined the Veteran in April and October 2011 provided a third medical opinion addressing his obstructive sleep apnea and any mental health disabilities. Following another review of his record, the psychologist determined that he did not have chronic depressive disorder. Any mood symptoms with which he presented in the past were linked to situational factors, such as problems with cocaine and alcohol dependence, homelessness, limited income and waning social support. She explained that the Veteran experienced situationally-linked depression, as evidenced by his pattern of seeking hospitalization only when all other resources have been exhausted, and the fact that his therapy treatment notes deal almost exclusively with resource acquisition (such as housing and financial aid). In further support of her conclusion, the VA psychologist cited to a named medical study which determined that there was no definitive relationship between obstructive sleep apnea and depression-specifically, its finding that sleep apnea does not cause depression. Many of the symptoms overlap, she noted, such as fatigue, limited concentration and weight gain, but there is no causal relationship. In even further support of her conclusion, the VA psychologist contacted the VA doctor who completed the February 2012 medical opinion and was told that the opinion was completed after 40 minutes with the Veteran, without review of his case file, and was worded at the direction of the Veteran, rather than of her own accord. Once again, the VA psychologist indicated that there was no link between his obstructive sleep apnea and any depressive symptoms he experienced. It is the responsibility of the Board to assess the credibility and weight to be given to evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data and the medical conclusion the physician reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The "factually accurate, fully articulated, sound reasoning for the conclusion" contributes probative value to a medical opinion. Id. Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444 (2000). In this instance, for reasons discussed below, the Board finds the opinion of the April 2011/August 2011/March 2012 VA psychologist to be most probative in determining this claim. First, the Board affords no probative weight to the conclusion recorded in the Veteran's September 2011 treatment note, or to the conclusion reached by the February 2012 VA doctor. Neither of these opinions was supported with rationale, clear conclusions, supporting data or reasoned medical explanations. See Nieves-Rodriguez, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In addition, there is a suggestion that the February 2012 doctor merely transcribed her conclusion at the request of the Veteran. See Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). The Board notes that the weight of a medical opinion is diminished where, as here, the opinion is ambivalent, based on an examination of limited scope, or where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993); Guerrieri, supra. Thus, neither is afforded any probative weight. By contrast, great probative weight is given to the three opinions authored by the same VA psychologist in 2011 and 2012. She clearly based her consistent opinions on a thorough review of the Veteran's file, multiple in-person interviews with him, and she supported her well-reasoned conclusions with data, to include published medical research. Her conclusions more than adequately addressed the lack of a link between the Veteran's obstructive sleep apnea and his depression, and determined that any symptoms of depression were situational rather than due to his service-connected disability. Thus, the weight of the probative evidence of record shows that service connection is not warranted. As for the assertions of the Veteran that he experiences depression that is a result of his service-connected obstructive sleep apnea, the Board notes that he has not been shown to have the experience, training, or education necessary to provide a competent opinion as to whether such a diagnosis exists or is due to a separate medical condition. The Board finds that a medical diagnosis of depression falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a mental health disability which is due to his service-connected obstructive sleep apnea. Therefore, the provisions regarding reasonable doubt are not applicable and service connection must be denied. See 38 U.S.C. § 5107 (b) (2012); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. ORDER New and material evidence having been received, the claim of entitlement to service connection for depression, as due to obstructive sleep apnea, is reopened. Service connection for depression, as due to obstructive sleep apnea, is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs