Citation Nr: 18147764 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-09 536 DATE: November 6, 2018 ORDER Service connection for left shoulder disability is denied. Service connection for a sleep disorder is denied. Service connection for an acquired psychiatric disability, to include major depressive disorder, is granted. FINDINGS OF FACT 1. The current left shoulder disability did not have its clinical onset during or as a result of service. 2. A current sleep disorder has not been demonstrated since the claim was filed. 3. Resolving all doubt in the Veteran’s favor, the Veteran’s current major depressive disorder, unspecified, without psychotic features, (herein major depressive disorder) had onset during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for service connection for major depressive disorder are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to June 1975. In May 2016, the Veteran submitted a waiver of local jurisdiction regarding evidence he submitted directly to the Board following the last adjudication of the claim by the RO. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. 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, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection is also provided for a disability which is proximately due to, or the result of a service connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a left shoulder disability The Veteran contends that his left shoulder disability is etiologically related to his military service. The Board concludes that, while the Veteran has a current diagnosis, including left shoulder degenerative joint disease, and evidence shows that he was treated during basic training for a left shoulder dislocation, the preponderance of the evidence weighs against finding that the Veteran’s current left shoulder disability began during or within one year of service or is otherwise related to the in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). While service treatment records document that the Veteran experienced a left shoulder dislocation during basic training and he was put on a profile restricting pushups for the remainder of training, he had a normal X-ray at that time and was sent back to basic training. The remaining four years of military service were negative for any treatment of the left shoulder. Moreover, the Veteran’s left shoulder was found to be normal upon separation examination in March 1975 and the Veteran denied having a painful or “trick” shoulder in the report of medical history completed at that time. In fact, on that report of medical history, the Veteran had checked yes next to this section about the shoulder, crossed it out, and initialed it. The remainder of the report of medical history details other issues but does not indicate any impairment in the left shoulder. The Board acknowledges that lay statements have been submitted indicating that they knew the Veteran had injured his shoulder during service. However, the in-service injury is not in question in this case. The Board further acknowledges the Veteran’s reports, including during a July 2013 VA examination, that he had pain and restricted range of motion ever since that in-service injury. However, the Board concludes that if that were the case, the left shoulder would not have been evaluated as normal upon separation examination and/or there would have been some record of a complaint of such symptoms in the four years of service treatment records or many years between service and the current claim. Therefore, while the Veteran is competent to report symptoms such as left shoulder pain and when they began, and his friends and family are competent to what the Veteran told them regarding his left shoulder injury, these statements are not enough to demonstrate that the Veteran’s current left shoulder degenerative joint disease is etiologically related to the in-service injury incurred many decades prior to its diagnosis. To that end, the Board finds that those who have provided such lay statements, including the Veteran, have not been shown to demonstrate the kind of medical expertise that would be required to render a diagnosis of a left shoulder disability or opine as to its etiology. This issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Finally, the July 2013 VA examiner concluded that the Veteran’s current left shoulder disability was not related to military service or the in-service injury. The examiner found significant that although the Veteran complained of left shoulder pain and dislocation during basic training, the remainder of his military service was negative for any further left shoulder treatment or injury and his separation examination was also negative. The examiner also noted that the Veteran’s left shoulder issues are in fact bilateral and degenerative in nature, which demonstrated to the examiner that the left shoulder injury is not etiologically related to the one instance of in-service left shoulder injury and treatment. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that in an April 2013 opinion, the Veteran’s private physician diagnosed the Veteran with arthritic changes of the left shoulder that are “a direct result of multiple dislocations sustained while in the service.” However, the Board notes that the opinion was not supported by a rationale and was not based upon review of the evidence in the claims file. Indeed, if the medical records in the claims file had been reviewed, it would have been clear that the Veteran was not treated for and did not report multiple dislocations during military service. It appears that the private opinion is based, at least in part, on an inaccurate factual history of multiple dislocations sustained during military service. For these reasons, the Board finds that the probative value of the private opinion is significantly outweighed by that of the VA examiner’s opinion, which was based upon a review of the complete evidence of record and provided a well-explained rationale. While the Veteran believes his left shoulder disability is related to the in-service injury, as noted above, he is not competent to provide a nexus opinion in this case. Although he is competent to report when lay-observable symptoms such as when left shoulder pain began, as noted above, the evidence weighs against such reports, at least to the extent that such reports demonstrate the onset of his current left shoulder arthritis disability. Consequently, the Board gives more probative weight to the VA examiner’s opinion than the Veteran’s opinion. Given the above, the Board also finds that arthritis was not demonstrated within the first year following discharge from military service. Therefore, presumptive service connection is not warranted under 38 C.F.R. §§ 3.307(a) and 3.309(a). In addition, the evidence weighs against a finding that the Veteran’s left shoulder disability is etiologically related to the in-service left shoulder symptoms or injury. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. As there is not an approximate balance of evidence, that benefit of the doubt rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for a sleep disorder The Veteran contends that he incurred a sleep disorder as a result of military service. The Board finds that service connection is not warranted. To show a current disability for purposes of a claim for service connection, the medical evidence must demonstrate that the disability was present at some point since the claim was filed. McClain v. Nicholson, 21 Vet. App. 319 (2007). The medical evidence of record does not demonstrate the presence of a sleep disability at any time since the claim was submitted in June 2011. It appears that the Veteran is referencing sleep disturbances that occur as a result of an acquired psychiatric disability, as he links such disturbances with flashbacks to military service, such as in, for example, his June 2011 claim and August 2011 statement. Indeed, his mental health treatment records discuss sleep disturbance, such as difficulty falling asleep or insomnia, as a symptom of his acquired psychiatric disabilities. At no time has a sleep disability separate from those mental health-related symptoms been diagnosed or treated. The Board notes that the issue of service connection for an acquired psychiatric disability, to include the symptoms of sleep disturbance, are addressed in the next section of this decision. In addition, the Board notes that service treatment records are negative for any complaints, treatment, or diagnosis of a sleep disability. His separation examination in March 1975 was negative for any indication of a sleep disability. There is no other competent and credible evidence demonstrating a current sleep disability. To the extent the Veteran has reported certain symptoms, the Board notes that he is not competent to diagnose such a disability. To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise when the question is a complex one, as is so in this case. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran has such expertise. Based on the forgoing, the Board finds that service connection for a sleep disability is not warranted. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. As there is not an approximate balance of evidence, that benefit of the doubt rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder The Veteran that he incurred an acquired psychiatric disability as a result of military service. At the outset, the Board notes that an August 2011 opinion from a private physician, Dr. T.M., stated that the Veteran had PTSD related to military service. However, the Board notes that the treatment records from Dr. T.M. do not suggest or support a diagnosis of PTSD and the Veteran has not identified or submitted any treatment records which document treatment for or diagnosis of PTSD. Moreover, an October 2012 VA examination found that the Veteran did not meet the criteria for a diagnosis of PTSD and the Veteran’s own December 2014 private opinion did not diagnose PTSD. As such, the Board finds that the evidence does not support the finding of a PTSD diagnosis since the claim was submitted in June 2011. However, the Board concludes that the Veteran has a current diagnosis of an acquired psychiatric disability, to include depression and PTSD, that began during service and has continued since. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A December 2014 private opinion from Dr. H.G. shows that the Veteran has a current diagnosis of major depressive disorder, unspecified, without psychotic features, which she opined at least as likely as not began during active service and is further aggravated by his service-connected tinnitus disability. A diagnosis or treatment was not provided during service and the separation examination was negative for any indication of mental health symptoms. However, service treatment records document that the Veteran reported trouble with nervousness and anxiety and began receiving negative comments in his evaluations about a year into his service. The Veteran has asserted that his mental health symptoms began during military service and have continued and worsened since. Lay statements from those who knew the Veteran before, during, and after his military service confirmed that his personality and mental health changed during and after the military and have worsened since. The Board finds these competent lay statements to be credible and sufficient to establish the in-service onset and continuity thereafter of the Veteran’s mental health symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Based on the positive etiology opinion, the competent and credible lay statements, the in-service change in behavior and mental health symptoms during service, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for major depressive disorder. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B., Counsel