Citation Nr: 18142063 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-15 331A DATE: October 12, 2018 ORDER Service connection for unspecified depressive disorder is granted. REMANDED Service connection for chronic obstructive pulmonary disease (claimed as pre-cancerous lung nodes, COPD, and emphysema) is remanded. Service connection for a bladder control disability is remanded. Service connection for sleep apnea is remanded. The appeal seeking to reopen a claim for service connection for chronic fatigue syndrome is remanded. The appeal seeking to reopen a claim for service connection for neuropathy is remanded. FINDING OF FACT The Veteran has been diagnosed with depressive disorder and has provided competent and probative lay and medical evidence reflecting that his depressive disorder was incurred in service and has persisted since that time. CONCLUSION OF LAW The criteria for service connection for depressive disorder have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to October 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. Service Connection for a Depressive Disorder Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran has a current diagnosis of unspecified depressive disorder. See April 2016 Disability Benefits Questionnaire by H.H., Ph.D. The Veteran’s lifelong friends submitted lay statements supporting that the Veteran did not have signs of mental health problems before he went into the military, but began to show signs after he left service. See July 2015 Lay statement by B.B., submitted April 2016; July 2015 Lay Statement by H.L., submitted April 2016. Based on the evidence available to her and an interview with the Veteran, a psychologist opined that the Veteran’s unspecified depressive disorder more likely than not began in military service and continues uninterrupted to the present. See April 2016 Disability Benefits Questionnaire by H.H., Ph.D. The Board finds this opinion highly probative and accords it great weight. Accordingly, the Board finds that the preponderance of the evidence supports the claim and entitlement to service connection for unspecified depressive disorder is granted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The issues of service connection for chronic obstructive pulmonary disease (claimed as pre-cancerous lung nodes, COPD, and emphysema), a bladder control disability, and sleep apnea are remanded. The record indicates that the Veteran has applied for or is in receipt of disability benefits from the Social Security Administration (“SSA”). VA is required to obtain Social Security Records when those records are potentially relevant to the claim on appeal. See Golz v. Shinseki, 590 F. 3d 1317 (Fed. Cir. 2010). The Veteran was notified by an April 2014 letter that VA still needed treatment records related to his claimed disabilities and was provided with an Authorization and Consent to Release Information (VA Form 21-4142) if he wanted VA to attempt to obtain medical records. See April 2014 Notice Letter. The Board recognizes that VA’s duty to assist generally requires that the Veteran actively participate in his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). (“If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). However, because remand is already required, the RO should provide the Veteran with an additional opportunity to provide evidence or notify VA of additional, outstanding records so that VA may attempt to obtain them. In the case of sleep apnea, in particular, the Veteran has provided an opinion as to cause of the Veteran’s sleep apnea, see April 2016 Sleep Apnea Disability Benefits Questionnaire, but evidence of the Veteran’s diagnosis of sleep apnea is not in the file. The private provider references a 2012 polysomnogram, but this is not in the file. Without evidence of a current disability, a claim for service connection may not be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The appeals seeking to reopen claims of service connection for chronic fatigue syndrome and neuropathy are remanded. In addition to the reasons addressed above, the Veteran, through his congressional representative, has stated in an amended complaint to a United States District Court that he is currently being checked for other neurological conditions, including traumatic brain injury and Parkinson’s disease. See W.P. (Veteran) v. Governor, Amended Complaint. Because these may be related to neurological conditions for which the Veteran is seeking reopening, the RO should provide Veteran with an additional opportunity to provide evidence or notify VA of additional, outstanding records so that VA may attempt to obtain them. The matters are REMANDED for the following action: 1. Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim of entitlement to service connection for a bladder control disability, COPD, and sleep apnea and pertaining to his appeals seeking to reopen his claim of service connection for neuropathy and chronic fatigue syndrome. He should be invited to submit this evidence himself or to request that VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the claims file. At least two such efforts should be made unless it is clear from the private provider’s response to the first request that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he MUST be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Request directly from the SSA all records, including determinations, regarding any claim for disability benefits. All efforts to obtain these must be documented and associated with the claims file. 3. If, after completion of directive one, there is still no evidence of a sleep apnea diagnosis, schedule the Veteran for an examination by an appropriate clinician to determine the nature the Veteran’s claimed sleep apnea condition. If the examiner cannot determine the nature of the Veteran’s claimed sleep apnea because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Lambert, Associate Counsel