Citation Nr: 18141295 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-28 950 DATE: October 10, 2018 ORDER New and material evidence having not been received, the application to reopen the previously denied claim of service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for a neurologic disability, claimed as due to contaminated water at El Toro Marine Corps Air Station (MCAS) and to include memory loss, is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to PTSD, OSA, and service-connected right upper extremity scar is remanded. FINDINGS OF FACT 1. In a March 2006 rating decision, the RO denied entitlement to service connection for sleep apnea; although notified of the denial, the Veteran did not perfect an appeal, and no pertinent exception to finality applies. 2. Evidence added to the record since the March 2006 rating decision is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for sleep apnea 3. A competent diagnosis of a neurologic disability, to include as manifested by memory loss, is not shown in service, during the current appeal period, or at any time in close proximity to the appeal period. CONCLUSIONS OF LAW 1. The March 2006 rating decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection sleep apnea. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for a neurological disability, claimed as due to contaminated water at El Toro MCAS and to include memory loss, have not been met. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to February 3, 1983, which resulted in an honorable discharge. He also served on active duty from February 4, 1983 to November 1983, which resulted in a discharge under other than honorable conditions and is considered dishonorable for VA compensation purposes. Therefore, the Veteran is only entitled to receive VA benefits based upon his first period of service. See February 2004 Administrative Decision. This matter is on appeal from rating decisions issued in March 2014 and February 2015. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim for service connection for sleep apnea In November 2004, the Veteran filed a claim seeking service connection for sleep apnea. In support of his claim, the Veteran submitted a VA treatment record which shows he was had been diagnosed with obstructive sleep apnea (OSA) in November 2004 and was issued a CPAP machine for treatment. In March 2006, the RO denied service connection for sleep apnea. At that time, the RO considered the November 2004 VA treatment record and the Veteran’s service treatment records (STRs) which do not contain any complaint, treatment, or diagnosis of any condition or disease related to sleep apnea. However, the RO denied the claim on the basis that the Veteran’s OSA was unrelated to service, as it was not shown to have begun during service or was caused by his military service. The Veteran did not file a timely notice of disagreement (NOD) following the March 2006 rating decision. Nor does the record reflect that he submitted any new and material evidence relevant to the sleep apnea claim during the one-year appeal period following the issuance of the March 2006 rating decision. Therefore, the March 2006 rating decision became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). In November 2010, the Veteran attempted to reopen the previously denied claim of service connection for sleep apnea and, in support of his claim, submitted a statement wherein he stated that he started experiencing sleep problems one year after he was discharged from service. He also stated that he was not sure why he was having a problem but that he did not have a sleeping problem before his military service. See December 2010 Veteran statement. Additional VA treatment records were also associated with the claims file which note the Veteran’s continued diagnosis of OSA; however, in an April 2011 rating decision, the RO determined the evidence submitted in support of the petition to reopen the previously denied claim was not new and material because it did not provide a link between the Veteran’s OSA and military service. The Veteran was notified of the RO’s determination but he did not file an NOD following the April 2011 rating decision or submit new and material evidence within one year of the issuance of the decision. Therefore, the April 2011 rating decision also became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). In September 2012, the Veteran submitted a claim attempting to again reopen the claim of service connection for sleep apnea, which is the basis of this appeal. However, the Veteran has not submitted any lay or medical evidence that indicates or even suggests that his OSA began during service or is otherwise related to his military service. Indeed, while additional VA treatment records have been associated with the claims file, they merely document that he has a diagnosis of OSA but do not contain any information or evidence that attributes his disability to his military service. Additionally, the Veteran has not provided any statements indicating that his sleep apnea began during service or is otherwise related to an event, injury, or disease during service. In sum, the evidence associated with the record with the most recent petition to reopen the previously denied claim of service connection for sleep apnea does not tend to prove a previously unestablished fact necessary to substantiate the underlying claim or raise a reasonable possibility of substantiating the claim. Therefore, the Board finds new and material evidence has not been received and, thus, the claim of entitlement to service connection for OSA may not be reopened. Service Connection 2. Entitlement to service connection for a neurological disability, claimed as due to contaminated water at El Toro and to include memory loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim, during the pendency of that claim, or just prior to the filing of a claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In October 2014, the Veteran filed a claim seeking service connection for neurological effects, to include memory loss, based upon exposure to contaminated water at El Toro Marine Corps Air Station (MCAS). In support of his claim, he has submitted articles which note that Marine and Navy veterans who were stationed at El Toro were at risk for exposure to toxic chemicals as a result of the contamination of the soil and groundwater. See Articles regarding toxic waste exposure at El Toro MCAS. The Board notes that the Veteran’s service personnel records (SPRs), including the DD Form 214 from his first period of service, reflect that he served at El Toro MCAS during his first period of service. However, the Veteran has not provided any information regarding the circumstances by which he believes he was exposed to contaminated water or toxic chemicals/waste during his military service. In this regard, there is no presumptive of exposure to toxic chemicals, waste, or contaminated water based upon service at El Toro MCAS; therefore, the Veteran’s presence at this location, alone, does not establish exposure to contaminated water or toxic chemicals or waste. The Board notes that service connection may be granted for certain disabilities on a presumptive basis for veterans, former reservists, and former National Guard members who were exposed to contaminants in the water supply while serving at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. See 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(7), 3.309(f). In this context, the Veteran’s representative recently stated that the Veteran was exposed to contaminated water at Camp Lejeune, North Carolina. See May 2017 Appellant's Brief. However, the Veteran’s SPRs do not contain any indication that he served at Camp Lejeune during his first period of active service. Furthermore, none of the specified disabilities for which presumptive service connection is available are neurologic diseases, which is the basis of the Veteran’s claim. Therefore, further consideration of this claim based upon any exposure to contaminated water at Camp Lejeune, North Carolina is not warranted. Even if the Board assumed the Veteran was exposed to contaminated water or toxic chemicals/waste at El Toro MCAS, the Veteran has not identified or submitted any evidence showing a diagnosis of a neurologic disability during or since his first period of service. Indeed, the service treatment records do not contain any complaints, treatment, or diagnosis of a neurologic disorder. Likewise, the VA treatment records that are associated with the claims file reflect that the Veteran has denied having any focal neurologic deficits and, in February 2016, a VA clinician specifically noted that he did not demonstrate any neurovegetative symptoms. See e.g., VA treatment records dated June 2015 and February 2016; October 2016 VA treatment record. In June 2015, the Veteran reported having transient numbness and tingling in his legs and arms; however, a subsequent EMG study was normal and did not reveal any evidence of neuropathy or radiculopathy. See June and August 2015 VA treatment records. The VA treatment records document the Veteran’s complaints and treatment for memory loss. However, the preponderance of the evidence reflects that his memory loss has been attributed to his depression, as opposed to a cognitive or neurologic impairment. See e.g., October 2014 VA treatment record; December 2014 VA treatment record. Given the foregoing, the Board finds the Veteran has not identified or provided evidence of the claimed neurologic disability that he believes is related to his exposure to contaminated water at El Toro MCAS. As detailed above, the medical evidence of record does not reflect a diagnosis of a neurologic disability and the Veteran’s complaints of memory loss have been attributed to his depression, as opposed to a cognitive or neurologic disorder. Additionally, while the Veteran is competent to report his symptoms and, in some cases, laypersons may provide opinions regarding diagnoses, the presence and diagnosis of a neurologic condition requires medical testing and expertise. The record reflects that medical professionals have examined the Veteran and have not rendered a diagnosis of a neurologic disability or attributed any of his current symptoms to exposure to contaminants during service. These medical records are more probative with regard to whether the Veteran has a diagnosed neurologic disorder than the Veteran’s statements. Therefore, the Veteran’s statements are insufficient to establish the presence of a current disability. Accordingly, in the absence of a current disability, the Veteran’s claim must be denied and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to PTSD, OSA, and service-connected right upper extremity scar is remanded. The Veteran is seeking service connection for PTSD and an acquired psychiatric disorder which he has identified as depression. He has been variously diagnosed with PTSD, depression, and dysthymic disorder. See e.g., SSA records dated March and April 2014; October 2014 VA treatment record. Therefore, the Board has expanded the depression claim to include any acquired psychiatric disorder that has been diagnosed during the appeal period. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). The Veteran has provided at least one stressor that can be verified, e.g., witnessing or being in close proximity to a soldier who committed suicide during basic training. See February 2014 stressor statement. While the RO prepared a memorandum indicating that the Veteran’s stressors could not be verified, the Board finds that an attempt should be made to verify his stressor, given that he has provided detained information about the stressor, including approximate dates, location, and his unit of assignment. The Veteran has also provided additional information regarding traumatic events in service to which his other psychiatric diagnoses may be related. Therefore, the Veteran should also be provided a VA examination to determine if any current psychiatric disability is related to any incident that occurred during his military service. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s claimed stressors and document such attempts in the claims file. 2. Afford the Veteran an examination to determine the nature and etiology of any acquired psychiatric disorder. After review of the Veteran’s claims file, the examiner should provide the following opinions: a) Identify any acquired psychiatric disability present since September 2012, including but not limited to depressive disorder, dysthymic disorder, and PTSD. If any of the foregoing diagnoses are not found on the current examination, the examiner should address the prior diagnoses. b) For any diagnosis of PTSD, state whether the claimed stressors are adequate to support a diagnosis of PTSD and opine whether it is at least as likely as not (50 percent or more probability) that PTSD is related to service, to include the reported stressors. c) For each diagnosis found other than PTSD, state whether it is at least as likely as not (50 percent or greater degree of probability) that an acquired psychiatric disorder had its onset during or is otherwise related to service. d) A rationale must be provided for each opinion offered. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel