Citation Nr: 18143614 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-10 893 DATE: October 19, 2018 ORDER Service connection for a low back disorder is denied. Service connection for an acquired psychiatric disorder, manifested by anxiety and sleep impairment, is denied. Service connection for sleep apnea is denied. FINDINGS OF FACT 1. A low back disorder is not related to service. 2. An acquired psychiatric disorder, manifested by anxiety and sleep impairment, is not related to service. 3. Sleep apnea is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 101(2), (24), 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for an acquired psychiatric disorder, manifested by anxiety and sleep impairment, have not been met. 38 U.S.C. §§ 101(2), (24), 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.125 (2017). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 101(2), (24), 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had no full-time active duty service. He served in the Marine Corps Reserves and had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA), including a confirmed period for basic training, from November 8, 2005, to April 1, 2006, which is identified as INACDUTRA. In March 2018, the appellant presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. At the Board hearing, the appellant was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103 (2017). A transcript of the hearing is included in the claims file. The appellant testified that he was seeking service connection for sleep apnea, but also for sleep impairment associated with a psychiatric disorder. The Board has characterized the issues accordingly. The appellant testified that he believes headaches are related to the psychiatric disorder or sleep disorder. The Board notes that a claim of entitlement to service connection for headaches was not adjudicated by the RO and is not currently on appeal. The appellant is also advised that his statements at the hearing do not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.155(a). The appellant should contact the RO if he wishes to file a claim for additional VA benefits, such as headaches. The appellant submitted additional medical evidence after the most recent adjudication of his claims by the RO. With respect to claims for which a substantive appeal is filed on or after the date that is 180 days after the Aug. 6, 2012, date of the enactment of the amendment, i.e., February 2, 2013, such evidence shall be subject to initial review by the Board unless the claimant or the claimant’s representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence. As the current appeal was perfected by a substantive appeal received on March 17, 2015, the Board will consider this evidence in the first instance. Service Connection VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the claimant's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). VA service-connected compensation can be based on (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24) (West 2014). For active duty service, entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As noted above, the appellant had no active duty service but had only periods of ACDUTRA and INACDUTRA. The Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law applicable to active duty service establishes “veteran” status without further requirements. Moreover, it permits a grant of service connection simply by evidence establishing an etiological relationship between an injury or disease in service and a post-service disability. The law pertaining to periods of ACDUTRA and INACDUTRA requires that the claimant have become disabled during the period of ACDUTRA or INACDUTRA in which the injury or disease occurred, and specifically requires that the disease and/or injury have been incurred in the line of duty. Moreover, the claimant bears the burden of establishing that this sequence of events has occurred before “veteran” status is granted. 38 U.S.C § 101(24). The presumption of service connection for specific chronic diseases applies to active duty service, but “can never” apply to periods of ACDUTRA and INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) (By definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. In contrast, for a claimant whose claim is based on a period of active duty for training to establish entitlement to benefits, there must be some evidence that his or her condition was “incurred or aggravated” during the relevant period of service). The presumption of soundness (38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)) applies to “every veteran.” Therefore, establishing “veteran” status is a prerequisite to application of the presumption of soundness. Smith, 24 Vet. App. at 45–46. Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).Before becoming entitled to status as a claimant for VA benefits, an appellant must first demonstrate by a preponderance of the evidence (1) that he or she is a “veteran,” or (2) “veteran” status for the person upon whose military service the claim for VA benefits is predicated. Laruan v. West, 11 Vet. App. 80, 84-86 (1998) en banc. Service connection for a low back disorder. The appellant contends that he incurred a low back disability from a lifting injury during a period of ACDUTRA or INACDUTRA. However, he has not been consistent in relating the details of this injury. In August 2008 correspondence, the appellant reported injuring his back in October 2007 (Record 08/03/2008). However, on his VA Form 21-526 (Veteran’s Application for Compensation and/or Pension), received in November 2011, the appellant reported injuring his low back in June or July of 2007 (Record 11/15/2011). Military personnel records do not reflect any report of an injury during an official duty period. There are no line-of-duty investigations or other notations of injury. The appellant has testified that he did not seek treatment from military sources, and that he did not officially report an injury. His DD Form 214 does not list a disability as the reason for separation, but lists only completion of this term of service (Record 12/11/2014). Most significant, although the appellant has reported a specific lifting injury as being the onset of his back disability, and he has submitted several buddy statements endorsing the occurrence of this injury, he has reported conflicting details in older accounts provided to medical treatment providers. A January 28, 2008, Clinical Note reveals the appellant’s report of a 3 to 6 month history of back pain. The appellant reported a previous episode of back pain in October 2005 (Record 01/26/2012 at 10). A March 11, 2009, Initial Evaluation Report notes a diagnosis of a herniated disc with unknown date of injury, and with pain for several years. The appellant reported that the injury was not work-related and that he “does not know how it occurred” (Record 04/30/2012). The Board is obligated under 38 U.S.C. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the claimant. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In weighing the conflicting statements provided by the appellant, the point in time in which the statement was made is important because a description of an event which is closer to the time that event allegedly occurred is naturally less likely to be affected by errors in memory. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). Thus, the more contemporaneous nature of the 2009 statement, being closer in time to the onset of the back disorder, is significant. Furthermore, because that statement was presented in the context of routine medical evaluation, it seems likely that the appellant would report events carefully and accurately. The “medical diagnosis or treatment” exception to the hearsay rule (Fed. R. Evid. 803) provides that “statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care.” Recourse to the Federal Rules of Evidence is appropriate where they will assist in articulation of the Board of Veterans’ Appeals’ reasons. Rucker v. Brown, 10 Vet. App. 67 (1997). In contrast to the earlier account, when the appellant presented the account of injury during training, he was seeking VA benefits rather than medical treatment. The Board is of course cognizant of possible self-interest which any VA claimant has in promoting a claim for monetary benefits. While the Board must consider all competent lay assertions, in determining the credibility of such assertions, the Board may properly consider the personal interest a claimant has in his or her own case. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). This self-interest can also extend to friends and family members. There is no question that the appellant is competent to relate lay-observable events as he remembers them. However, it is the credibility of the post-claim account which the Board finds is lacking. Simply put, the 2009 statement, made by the appellant to a medical treatment provider, which denied any knowledge of how the back injury occurred, is more reliable and persuasive than the appellant’s later statements, and those submitted by others in his behalf, in support of a claim for benefits. Combined with the 2008 statement, also made to a medical treatment provider, which endorsed a prior (pre-service) episode in October 2005, the Board finds that the appellant’s testimony linking the onset of the disability to a specific lifting injury during ACDUTRA or INACDUTRA, is unpersuasive and not credible. In sum, the Board finds that the appellant did not become disabled due to a low back injury incurred in the line of duty during a period of ACDUTRA or INACDUTRA. In light of this finding, the Board concludes that service connection for a low back disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for an acquired psychiatric disorder. Entitlement to service connection for a sleep disorder. The appellant contends that an acquired psychiatric disorder is secondary to his back disorder, and that a “sleeping” disorder is related to his back disorder. As service connection is not in effect for the back disorder, or for any other disability, there can be no secondary service connection theory of etiology regarding either claim. To the extent the appellant seeks to link either claim directly to service, the Board observes that this is an extremely difficult relationship to establish given the type of service rendered in his case. Notably, diseases (as distinguished from injuries) cannot be based on any period of INACDUTRA, but can only be based on ACDUTRA. However, only if it can be established that the disease became a disability during that period of ACDUTRA. As noted above, the appellant’s service from November 8, 2005, to April 1, 2006, is identified as INACDUTRA. In this case, there are no line-of-duty investigations, and the appellant has stated that both conditions were diagnosed well after service. Moreover, the medical evidence also appears to be against the incurrence of a mental disorder and sleep apnea as disabilities during service. A February 2018 Mental Disorders DBQ provides a diagnosis of anxiety. However, the history was noted as post-military. The examiner noted that his wife passed away 2 years prior, and that this triggered grief and anxiety (Record 03/14/2018). A February 2018 Sleep Apnea DBQ provides a history of sleeping issues related to back pain, and that the appellant noticed snoring 1 year prior. A diagnosis of sleep apnea was noted (Record 03/14/2018). After a review of all of the evidence, the Board finds that both disorders started after service. Accordingly, the appellant did not become disabled by either disorder due to injury or disease incurred in the line of duty during ACDUTRA or INACDUTRA. In sum, the Board finds that an acquired psychiatric disorder is not related to service; and that sleep apnea is not related to service. In light of these findings, the Board concludes that service connection is not warranted for either condition. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp