Citation Nr: 1801539 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-33 735A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for erectile dysfunction. 4. The propriety of the discontinuance of service connection for the purpose of establishing entitlement to hospital and medical treatment due to psychosis. REPRESENTATION Veteran represented by: Michael Steinberg, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to June 1986 and from March 1987 to February 1992, to include verified service in the Southwest Asia theater of operations from September 1990 to April 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2008, April 2008, March 2011, July 2011, January 2013, and May 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2016, the Veteran testified at a hearing before the Board; however, a transcript from the August 2016 hearing is unavailable because of a recording equipment malfunction. In a May 2017 hearing, the Veteran testified before the undersigned Veterans Law Judge, and that a copy of that transcript is of record. The issues of service connection for a psychiatric disorder, to include major depressive disorder and PTSD, the propriety of the discontinuance of service connection for the purpose of establishing entitlement to hospital and medical treatment due to psychosis are addressed in the remand following the order; these matters are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. The issues of entitlement to an increased rating for a left knee disability, service connection for a left ankle disability, service connection for a lumbar spine disability, service connection for a sinus disorder, service connection for migraines (claimed as headaches), service connection for chronic fatigue syndrome (claimed as insomnia and fatigue), and service connection for diabetes will be addressed in a separate Board decision. FINDINGS OF FACT 1. The competent and probative evidence of record does not demonstrate that the Veteran's sleep apnea began in or is etiologically related to his active duty service. 2. The competent and probative evidence of record does not demonstrate that the Veteran's erectile dysfunction began in or is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for erectile dysfunction 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 Although all the evidence has been reviewed, the Board is not required to discuss each piece of evidence in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis will focus on what the most relevant and salient evidence shows, or fails to show, with respect to the Veteran's claims. Legal Criteria Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection 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, 1167 (Fed. Cir. 2004). Factual Background and Analysis Sleep Apnea The Veteran is claiming service connection for sleep apnea. In March 1982, June 1986, and January 1987 reports of medical history, the Veteran did not report any problems with his sleep, and March 1982, June 1986, January 1987, and February 1992 examination reports do not document any sleep difficulties. In his January 1992 report of medical history for separation purposes, the Veteran reported frequent trouble sleeping but also noted, "I am in good health at this time. I am not taking any medications at this time." At a September 2007 VA psychiatric appointment, the Veteran endorsed symptoms of difficulty falling asleep and reported his midcycle was disturbed by nightmares; he indicated he only received about four to five hours of sleep and was frequently tired during the day. He specifically denied symptoms of sleep apnea. In December 2010, a sleep study was performed based on the Veteran's history of obesity, snoring, daytime sleepiness, and the results of the Epworth Sleepiness Scale (a scale intended to measure daytime sleepiness based on reported subjective symptoms). A formal diagnosis of sleep apnea was rendered in February 2011. Following a July 2011 VA examination, the examiner concluded that sleep apnea was less likely than not related to service (less than a 50 percent probability), reasoning that there were no symptoms attributable to sleep apnea during or at separation from service and that the first manifestations were around the diagnosis in 2011. The Veteran was not treated and/or diagnosed with sleep apnea until well after his separation from active duty service, which weighs heavily against his claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Moreover, the record contains a negative opinion with supporting rationale and there are no contradictory opinions of record. To the extent that the Veteran has alleged that the sleep apnea is secondary to sinusitis, the Board notes that sinusitis is not a service-connected disability. Based on the foregoing, the Board finds service connection for sleep apnea is not warranted. Erectile Dysfunction The Veteran claims service connection for erectile dysfunction is warranted because he has experienced symptoms since separating from active duty service. Service treatment records do not contain any complaints, symptoms, or treatment for erectile dysfunction or any genitourinary disability. Post-service medical records first demonstrate that the Veteran first complained about erectile dysfunction in November 2001. At a July 2011 VA examination, the examiner determined it was less likely than not (less than a 50 percent probability) that the Veteran's erectile dysfunction began in or is etiologically related to his active duty service, reasoning that there were no complaints during service and that the first time the Veteran complained of erectile dysfunction to medical examiners was in November 2001. The Veteran's statements regarding the onset of erectile dysfunction are inconsistent with reported onset of erectile dysfunction to treating medical providers. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). The Board finds the Veteran's statements to treating physicians to be more probative than his claims made in furtherance of compensation benefits. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994). The Veteran was not treated and/or diagnosed with erectile dysfunction until well after his separation from active duty service, which weighs heavily against his claim. See Mense, 1 Vet. App. at 356. Moreover, the record contains a negative opinion with supporting rationale and there are no contradictory opinions of record. To the extent that the Veteran has alleged that the erectile dysfunction is secondary to diabetes, the Board notes that diabetes is not a service-connected disability. Based on the foregoing, the Board finds service connection for erectile dysfunction is not warranted. Additional Considerations The Board recognizes that the Veteran sincerely believes his claimed disabilities began during or are related to his active duty service. The Board also acknowledges that the Veteran is competent to report his symptoms and that letters submitted by his family members are competent evidence to identify symptoms they have witnessed. However, the Veteran's statements have been inconsistent and lack credibility. See Caluza, 7 Vet. App. at 510-11. Therefore, the Board affords them very little probative weight. Moreover, the Veteran and his family members have not shown they possess the requisite medical education, training, or experience to diagnose disabilities and/or determine their etiology. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training. or experience to offer medical diagnoses, statements, or opinions). Furthermore, the Veteran's statements that physicians have informed him that his disabilities are related to his active service and/or are related to a service-connected disability are not competent evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (holding that a layman's account of what a physician purportedly said is too attenuated and inherently unreliable to constitute medical evidence). Finally, the Board has considered the benefit of the doubt doctrine; however, as the evidence weighs against his claims, it is not applicable. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). VA's Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by a number of letters to the Veteran, to include a letter most recently dated December 2012. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records from both periods of service, VA treatment records, Social Security Administration records, and identified private records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has also been afforded several VA examinations in connection with his claims. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not identified any additional, existing evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The Board acknowledges that following the issuance of the most recent Supplemental Statement of the Case that additional private medical records dated January 2011 through May 2014 were submitted by the Veteran's attorney without a waiver of initial RO review. However, the Board finds a remand is not necessary because these records document treatment for medical conditions that were previously known to exist and do not provide evidence of earlier complaints, symptoms, or treatment for any of the disabilities the Veteran is claiming service connection for. To remand for the RO to review these in the first instance would only impose additional burdens on VA with no benefit flowing to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). ORDER Service connection for sleep apnea is denied. Service connection for erectile dysfunction is denied. REMAND Service Connection for a Psychiatric Disorder The Veteran is claiming entitlement to service connection for a psychiatric disorder, to include PTSD and major depressive disorder. Claims for service connection for psychiatric disorders, to include PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, the Board has merged these issues as one on the cover page. When the Veteran first raised the issue of service connection for depression at his June 2010 hearing, he indicated he felt it was secondary to his left knee disability. Therefore, only an opinion regarding secondary service-connected was obtained. With regard to his claim for PTSD, the Veteran has alleged that he witnessed a friend/fellow soldier killed in front of him while serving overseas. The RO sent the Veteran a September 2010 letter informing him of the information required to complete processing of a claim for entitlement to service connection for PTSD and requesting that he provide additional information regarding any claimed stressor(s). Although the Veteran returned the acknowledgement portion of that letter, indicating he had received it, he did not provide VA with any information regarding any claimed stressors. However, at his May 2017 hearing before the Board, the Veteran provided specific details regarding witnessing his friend killed during service. Accordingly, on remand the Veteran must be contacted and asked that he provide additional details in support of his claim to allow VA to contact the Joint Services Records Research Center (JSRRC) to attempt to verify his claimed stressor. If the Veteran fails to provide sufficient information required to submit to JSRRC, he must be informed of such and be given the opportunity to provide additional information. If, and only if, any of the Veteran's claimed stressors are verified, he must be afforded a VA PTSD examination. With regard to the Veteran's claim for service connection for a psychiatric disorder other than PTSD, as noted above, the only medical opinion of record pertains to secondary service connection and does not consider service connection for a psychiatric disorder on a direct basis. Regardless of whether the claimed stressors can be verified, the Veteran must be afforded a VA psychiatric examination to determine whether any diagnosed psychiatric disorders (other than PTSD) is due to his active duty service. Propriety of the Discontinuance of Service Connection for the Purpose of Establishing Hospital and Medical Treatment Due to Psychosis In May 2015, the RO issued a decision discontinuing service connection for eligibility for hospital and medical treatment due to psychosis, and in August 2015, the Veteran filed a Notice of Disagreement with that decision. Although the RO acknowledged receipt of this Notice of Disagreement in a September 2015 letter to the Veteran, no additional action has been taken. Additionally, a review of the Veterans Appeals Control and Locator System (VACOLS) does not reflect that the RO has taken any further action. As such, the Veteran's claim must be remanded in order to provide him with a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran and his representative with a Statement of the Case regarding the propriety of the discontinuance of service connection for the purpose of establishing hospital and medical treatment due to psychosis. The Veteran must be informed of the requirements to perfect an appeal with respect to this issue. If, and only if, the Veteran perfects an appeal with respect to this issue, the RO must ensure that all indicated development is completed before the case is returned to the Board. 2. Contact the Veteran and request that he provide additional information in support of his claim for PTSD in order to allow the RO to contact the JSRRC to attempt to verify his claimed stressor of witnessing a friend/fellow soldier killed in front of him while serving overseas. If the Veteran does not provide sufficient information to forward to the JSRRC for verification, he must be notified of such and be given an opportunity to provide additional information. If the RO receives sufficient information to forward to JSRRC, a request must be made to attempt to verify the Veteran's claimed stressors. 3. Following completion of step 2, if and only if the Veteran's claimed stressor is verified, afford him a VA PTSD examination. The examiner must review the evidence of record in its entirety. Following a complete review of the record, and with consideration of the Veteran's statements, the examiner must determine whether the Veteran has a diagnosis of PTSD under DSM-IV criteria and, if so, whether it is at least as likely as not (50 percent probability or higher) due to the verified in-service stressor. A complete rationale for must be provided. If the examiner determines the Veteran does not meet the criteria for a diagnosis of PTSD under DSM-IV criteria, he or she must provide a thorough explanation for that determination. If the examiner finds the Veteran's statements to be not credible for any reason, he or she must provide a thorough explanation for this conclusion. If the examiner is unable to determine whether the Veteran meets the criteria for a diagnosis of PTSD under DSM-IV criteria or if the examiner cannot determine without resorting to speculation whether any diagnosis of PTSD is related to any verified stressors, the examiner must provide a thorough rationale for this finding. 4. Following completion of step 2, regardless of whether the Veteran's claimed stressor can be verified, afford him a VA mental disorders examination. The examiner must review the evidence of record in its entirety. Following a complete review of the record, and with consideration of the Veteran's statements, the examiner must determine: * All diagnosed psychiatric disorders under DSM-IV criteria, other than PTSD, present during the pendency of the claim. * Next, with regard to each diagnosed psychiatric disorder, determine whether it is at least as likely as not (50 percent probability or higher) that the psychiatric disorder began in or is etiologically related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner finds the Veteran's statements to be not credible for any reason, he or she must provide a thorough rationale for this conclusion. If the examiner is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding. 5. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of his claim and that the consequences for failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 6. Then, the Veteran's claim for service connection for a psychiatric disorder must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs