Citation Nr: 18143155 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-18 832 DATE: October 18, 2018 ORDER 1. Entitlement to service connection for obstructive sleep apnea is denied. 2. Entitlement to service connection for high cholesterol is denied. 3. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), anxiety, and major depressive disorder, is denied. REMANDED 4. Entitlement to service connection for right knee, tear of medial meniscus, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s obstructive sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. 2. High cholesterol is a laboratory finding and does not constitute a chronic disability for which VA disability benefits may be awarded. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for high cholesterol have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, and major depressive disorder, is denied. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to May 2009. Concerning the Veteran’s claim for service connection for an acquired psychiatric disorder, claimed as PTSD, anxiety, and major depressive disorder, in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) noted the Board should consider alternative current disorders within the scope of the filed claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has preliminarily reviewed the case at hand and finds that Clemons is applicable here. The RO has separately denied, and the claim has been certified to the Board as, a claim for PTSD, anxiety, and major depressive disorder. In light of Clemons, the Board has framed the issue as entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, anxiety, and major depressive disorder, as reflected on the title page. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. A lay person is competent to report to the onset and continuity of his symptomatology. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. 1. Entitlement to service connection for obstructive sleep apnea The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, and evidence shows that the Veteran reported some difficulty sleeping, daytime sleepiness, and waking up too early in January 2008 during his active duty service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of obstructive sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with obstructive sleep apnea until August 2012, more than three years after his separation from service. While the Veteran and his spouse are competent to report the Veteran experienced symptoms of snoring and difficulty breathing while sleeping during and since service, the Veteran and his spouse are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of obstructive sleep apnea. At an August 2014 VA examination, the VA examiner opined that the Veteran’s obstructive sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including consideration of the Veteran’s January 2008 STRs documenting difficulty sleeping. The VA examiner specifically commented on these STRs, stating the symptoms reported by the Veteran in January 2008 were consistent with routine insomnia and were not a diagnosis of or symptomatic complaints consistent with obstructive sleep apnea. The examiner’s opinion is highly probative because it was based on an accurate medical history and provided an explanation that contains clear conclusions and supporting data. There is no competent evidence to weigh against this medical opinion. Accordingly, service connection for sleep apnea is denied. 2. Entitlement to service connection for high cholesterol The Veteran’s STRs show a history of and treatment for high cholesterol in January 2008. However, high cholesterol, which is also referred to as hypercholesterolemia and is “excessive cholesterol in the blood” is a laboratory finding and not a disability for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996); quoting Dorland’s Illustrated Medical Dictionary, 887 (32nd ed. 2012). The term disability, for VA purposes, refers to impairment in earning capacity. Here, the preponderance of the evidence is against a finding that the Veteran’s high cholesterol, in and of itself, causes any functional impairment of earning capacity. As the Veteran’s high cholesterol is a laboratory finding and has not been shown to be a disability productive of functional impairment in earning capacity, service connection is not warranted. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and major depressive disorder Service connection for PTSD requires medical evidence diagnosing the disability in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the American Psychiatric Association Diagnostic and Statistical manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.125(a), 4.130. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a psychiatric disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. The August 2014 VA examiner, acknowledging the Veteran’s verified stressor, evaluated the Veteran and determined that, while he experienced mild intrusive thoughts and avoidance behaviors, these symptoms did not significantly impact functioning, and under both DSM-IV and DSM-5, the Veteran did not meet the criteria for a diagnosis of any psychiatric disorders. There is no competent evidence to weigh against this medical opinion. The Board acknowledges that the Veteran has submitted two additional stressors since the August 2014 VA examination. However, as the Veteran does not have a diagnosis of a psychiatric disorder, the additional stressors do not assist in establishing a claim for service connection for an acquired psychiatric disorder. Accordingly, service connection for an acquired psychiatric disorder is denied. REASONS FOR REMAND 4. Entitlement to service connection for right knee, tear of medial meniscus, is remanded. In September 2018, the Veteran submitted private medical records. The Veteran’s September 2018 private medical records included a private medical opinion that noted that “it’s probable given all the running that is required in addition to car[ry]ing heavy Ruck Sacks . . .” that the Veteran’s meniscal tear in his right knee was related to service. The Board acknowledges this opinion, but finds that a remand is necessary for a VA examination as the private examiner does not appear to have reviewed the Veteran’s STRs, which do not include treatment for a right knee injury or complaints of right knee pain. As the private medical opinion was not based on a review of the Veteran’s claims file or his STRs, which do not indicate any knee disability, the Board finds the private medical opinion is inadequate and an additional medical opinion is necessary to substantiate the Veteran’s claim. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s right knee medical meniscal tear. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel