Citation Nr: 18146160 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-38 227 DATE: October 31, 2018 ORDER Service connection for depressive disorder with anxiety is granted. Service connection for sleep apnea is denied. REMANDED Service connection for headaches is remanded. Service connection for a neck disorder is remanded. A rating greater than 20 percent for degenerative arthritis of the left shoulder is remanded. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran had a period of active duty for training from July 1979 to November 1979 and active duty from June 2006 to June 2008, with additional National Guard service. 2. Depressive disorder with anxiety is caused by or permanently worsened in severity by a service-connected left shoulder disability. 3. The Veteran has not been diagnosed with sleep apnea. CONCLUSIONS OF LAW 1. Depressive disorder with anxiety is proximately due to, aggravated by, or the result of service-connected degenerative arthritis of the left shoulder. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Briefly, the Board notes that a May 2017 rating decision reduced the Veteran from a 20 percent to a noncompensable rating for her left shoulder disability. She submitted a timely Notice of Disagreement (NOD) in October 2017, but a Statement of the Case (SOC) has not yet been issued. Ordinarily, this matter would be remanded for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, this appeal stream remains active in the Veterans Appeals Control and Locator System (VACOLS), and development for this matter appears to be ongoing. Therefore, this situation is distinguishable from Manlincon, where an NOD had not been recognized. As such, a remand of this issue is not currently necessary. Service Connection The Veteran seeks service connection for an acquired psychiatric disorder and sleep apnea. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In assessing the merits of these appeals, the Board will limit its analyses to those theories of entitlement as presented by the Veteran or the evidence of record. Psychiatric Disorder As an initial matter, the Board notes that the Veteran’s service connection claim was limited to posttraumatic stress disorder (PTSD). However, a PTSD claim cannot be granted absent evidence of a current medical diagnosis offered in accordance with 38 C.F.R. § 4.125(a). Although her VA records occasionally cite treatment for PTSD, it is not clear that this diagnosis is offered per the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria as required. Thus, a current diagnosis of PTSD, in accordance with VA regulations, is not found. As such, the regulations pertaining to the development of a PTSD claim are not applicable to this appeal. Nonetheless, the Board has expanded the Veteran’s claim to include all acquired psychiatric disorders given the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this respect, a May 2016 private examiner diagnosed the Veteran with depressive disorder due to another medical condition with depressed features. VA treatment records also reference multiple similar diagnoses, including adjustment disorder (October 2009) and depressive disorder, generalized anxiety with agoraphobia, and episodic panic attacks (May 2013). Accordingly, the first element of service connection—a current disability, best classified as depressive disorder with anxiety—has been met. Here, the Veteran contends that her psychiatric disorder is causally related to her service-connected left shoulder disability. To that end, the May 2016 private examiner opined that the Veteran’s left shoulder disability, in addition to a nonservice-connected neck disorder, more likely than not aggravated her depressive disorder. In the accompanying narrative, the examiner noted the Veteran’s testimony that her “physical issues” impacted her mood, which in part caused low energy and motivation and prevented her from participating in gainful activity. The examiner additionally noted the known causal relationship between medical and psychiatric difficulties, such that individuals with medical issues and depressive disorder become disabled due to the holistic effect of medical and psychiatric disturbances. As such, the Veteran’s left shoulder disability manifested as depressive disorder, which was then aggravated as a result thereof. Significant probative value is afforded to this opinion, which includes a detailed assessment into the relationship between the Veteran’s left shoulder and psychiatric conditions. Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). Moreover, the private examiner possesses the requisite medical expertise to render a competent opinion regarding the etiology of the Veteran’s psychiatric disorder, and there is no indication that she was not fully aware of the Veteran’s history or misstated any relevant facts in providing her opinion. Further, her opinion is supported by the additional evidence of record, including various VA treatment records which note the Veteran’s left shoulder disorder as an Axis III psychiatric diagnosis. As such, the evidence supports the finding of a nexus between the Veteran’s psychiatric disorder and her service-connected left shoulder disability. Service connection is therefore warranted. Briefly, the Board notes that it has not overlooked the Veteran’s statements regarding an alleged military sexual assault. As the appeal may be granted upon the above rationale, further analysis into this incident is not required. Sleep Apnea With respect to the sleep apnea appeal, the evidence does not demonstrate that the Veteran was diagnosed with this disorder at any time during the pendency of this appeal. Instead, extensive VA records are entirely silent for such a diagnosis or the treatment thereof. In the absence of a current disability, further inquiry into the in-service event or nexus elements is rendered moot and the appeal is thus denied. In offering this conclusion, the Board has considered the Veteran’s contention that she has sleep apnea. However, she lacks the requisite medical training and expertise to competently diagnose her observable symptoms. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, greater probative value is afforded to the medical evidence, which does not establish a diagnosis of sleep apnea in this case. Briefly, the Board acknowledges that the Veteran has not undergone VA examination for the claimed disability. However, an examination is not warranted absent competent evidence of a current disability or persistent or recurrent symptoms of a disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the record does not contain any such evidence, nor has the Veteran offered testimony to that effect, an examination is not warranted at this time. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the remaining claims. Headaches The Veteran contends that her headaches are causally related to service, such that a copy of her service treatment records (STRs) are needed the assess the merits of her claim. Although a portion of her STRs have been associated with the claims file, records from the Veteran’s National Guard service have not yet been obtained. Per March 2010 and July 2014 Personal Information Exchange System (PIES) instructions, a request for these records must now be made to the Adjutant General’s office for the state in which the Veteran’s service was performed. Neck Disorder Although the Veteran underwent VA neck examination in February 2015, this examination is inadequate for the examiner’s failure to assess whether the claimed neck disorder is aggravated by the Veteran’s service-connected left shoulder disability. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). As such, a new opinion must now be obtained which specifically assesses this theory of entitlement. Left Shoulder Disability An October 2014 rating decision continued the assignment of a 20 percent rating for the Veteran’s left shoulder disability. A timely NOD was received in May 2015. However, an SOC has not yet been issued which addresses this appeal, nor does it appear that this appeal stream remains active in VACOLS or that development by the Regional Office (RO) is ongoing. As such, a remand is now warranted such that the requisite SOC may be provided. See Manlincon, 12 Vet. App. at 238. Briefly, the Board notes that the Veteran raised the issue of entitlement to an earlier effective date for her left shoulder disability on the May 2015 NOD. However, this issue was not in appellate status at that time, such that the NOD as to this matter is invalid. Such a finding does not preclude the Veteran from submitting this as a new claim in the future. TDIU Determination of the above appeals will directly impact the TDIU appeal, as well, such that the issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, remand of the above-mentioned appeals necessitates remand of the TDIU claim, as well, such that the full scope of the Veteran’s service-connected disabilities may be considered in analyzing her entitlement. The matters are REMANDED for the following actions: 1. Identify the Veteran’s complete period of National Guard service for the state of Georgia. Then, submit a records request to the state’s Adjutant General’s office to obtain a complete copy of her STRs. 2. Schedule the Veteran for an examination to assess the nature and etiology of the claimed neck disorder. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. In particular, the examiner should offer an opinion as to the following: Whether it is at least as likely as not (50 percent probability or more) that the neck disorder was caused or aggravated by the Veteran’s service- connected left shoulder disability or the treatment thereof. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. In formulating the opinions, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. If appropriate, refer the claim to VA’s Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). 4. Provide the Veteran and her representative with an SOC addressing the left shoulder increased rating claim. The Veteran is reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. 5. Readjudicate the remaining headache, neck, and TDIU appeals. If the benefits sought remain denied, issue a supplemental statement of the case to the Veteran and her representative and provide an appropriate period for response. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel