Citation Nr: 18140802 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-16 533 DATE: October 5, 2018 ORDER New and material evidence not having been received, the appeal to reopen service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for an acquired psychiatric disorder, to include anxiety disorder and depression, is denied. Service connection for sleep apnea, including as due to an acquired psychiatric disorder, is denied. Service connection for gastroesophageal reflux disease (GERD) (claimed as acid reflux), including as due to an acquired psychiatric disorder, is denied. FINDINGS OF FACT 1. An October 2007 rating decision declined to reopen service connection for PTSD on the grounds that the Veteran failed to report for two scheduled VA examinations; the Veteran appealed the October 2007 rating decision, and a June 2009 Board decision reopened the claim for service connection for PTSD but denied service connection on the merits, finding that the Veteran failed to report for two scheduled VA examinations deemed essential to resolve the claim; the Veteran did not appeal the June 2009 Board decision. 2. Evidence received since the June 2009 Board decision is new to the claims file, but does not have any tendency to establish that the Veteran is currently diagnosed with PTSD. 3. The Veteran does not have a current diagnosis for an acquired psychiatric disorder, to include anxiety disorder and depression. 4. The Veteran does not have a current diagnosis for sleep apnea. 5. The Veteran does not have a current diagnosis for GERD. CONCLUSIONS OF LAW 1. The June 2009 Board decision denying service connection for PTSD was final when issued. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has not been received to reopen service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for an acquired psychiatric disorder, to include anxiety disorder and depression, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 4. The criteria for service connection for sleep apnea, including as due to an acquired psychiatric disorder, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for service connection for GERD, including as due to an acquired psychiatric disorder, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from July 1979 to May 1982. 1. Whether new and material evidence has been received to reopen service connection for PTSD Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for PTSD was previously denied in a May 2006 Board decision on the basis that the evidence did not show that the Veteran had been diagnosed with PTSD. In an October 2007 rating decision, the RO denied reopening of service connection for PTSD on the grounds that the Veteran failed to report for two scheduled VA examinations. The RO notified the Veteran of the October 2007 rating decision in October 2007. The Veteran appealed the October 2007 rating decision, and a June 2009 Board decision reopened service connection for PTSD but denied service connection on the merits, finding that the Veteran failed to report for two scheduled VA examinations deemed essential to resolve the claim. The Veteran did not appeal the June 2009 Board decision. The June 2009 Board decision was final when issued. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Since the June 2009 Board decision (final disallowance), additional evidence has been received in the form of VA treatment records, VA examination reports, service treatment records, and lay statements, which evidence is new because they have not been previously submitted. The evidence received since the June 2009 Board decision is not material because it does not have any tendency to establish a current diagnosis of PTSD, so does not raise a reasonable possibility of substantiating the claim for service connection for PTSD. The VA treatment records cited in a July 2016 correspondence from the Veteran’s representative have been considered and specifically discussed in prior disallowances of the claim for service connection for PTSD. Additionally, VA treatment records throughout the relevant claim period do not show the Veteran has been clinically diagnosed with PTSD. For the foregoing reasons, the Board finds that the evidence received since the June 2009 Board decision does not relate to a showing of a current diagnosis of PTSD; thus, the evidence received since the June 2009 Board decision is not new and material evidence to reopen service connection for PTSD. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). 2. Service connection for an acquired psychiatric disorder, to include anxiety disorder and depression The Veteran generally asserts that service connection for an acquired psychiatric disorder is warranted. See May 2015 Statement in Support of Claim. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran has not been diagnosed with an acquired psychiatric disorder, to include anxiety disorder and depression. The Veteran underwent a VA examination in August 2015, the examination report for which reflects no diagnosis for an acquired psychiatric disorder. During the August 2015 VA examination, the Veteran denied ever being treated for a mental disorder, either before, during, or after active service, and denied current treatment for any mental disorder, or being prescribed any medication for a mental disorder in the past or at the present time. After examination of the Veteran, the VA examiner concluded that the Veteran may have reported subjective mental health symptoms, but such symptoms did not rise to the level of chronicity required, and/or are transient, or were not objectively identified on mental status examination. VA treatment records throughout the relevant claim period likewise do not reflect treatment or any diagnosis for an acquired psychiatric disorder. Because the weight of the evidence shows the Veteran is not currently diagnosed with an acquired psychiatric disorder, the claim for service connection for an acquired psychiatric disorder, to include anxiety disorder and depression, must be denied. 3. Service connection for sleep apnea, including as due to an acquired psychiatric disorder The Veteran generally asserts that service connection for sleep apnea, including as due to an acquired psychiatric disorder, is warranted. See May 2015 Statement in Support of Claim. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows that the Veteran does not have a current diagnosis for sleep apnea. To the contrary, an August 2015 VA treatment record shows the Veteran underwent a polysomnogram, which revealed negative findings for obstructive sleep apnea. Because the weight of the evidence shows the Veteran is not currently diagnosed with sleep apnea, the claim for service connection for sleep apnea must be denied. 4. Service connection for GERD, including as due to an acquired psychiatric disorder The Veteran generally contends that service connection for GERD is warranted either on a direct basis, or as due to any treatment required for an acquired psychiatric disorder. See May 2015 Statement in Support of Claim. After a review of all the lay and medical evidence of record, the Board finds that the Veteran is not currently diagnosed with GERD. VA treatment records throughout the relevant claim period on appeal do not reflect any complaints, treatment, or diagnosis for GERD, acid reflux, or any other similar gastrointestinal disorders. Because the weight of the evidence demonstrates the Veteran is not currently diagnosed with GERD, the claim for service connection for GERD must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel