Citation Nr: 18150536 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-36 966 DATE: November 15, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to a sciatic nerve, is denied. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to a sciatic nerve, is denied. FINDINGS OF FACT 1. 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 an acquired psychiatric disorder, to include PTSD. 2. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that right lower extremity peripheral neuropathy began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that left lower extremity peripheral neuropathy began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f), 4.125a (2017). 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 3. The criteria for service connection for right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 4. The criteria for service connection for left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. On appeal, the Veteran contends that he has PTSD from his service in Vietnam, which, he alleges, is evidenced by two, post-service divorces and a lack of success in college. With respect to his sleep apnea claim, the Veteran argues that it could have been caused by exposure to agent orange. Addressing his claim for peripheral neuropathy of the bilateral lower extremities, the Veteran argues that his feet are in such bad condition due to the assigned footwear he received in service. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), which requires a diagnosis in accordance with the Diagnostic and Statistical Manual, Fifth Edition (DSM-5); (2) credible supporting evidence that the claimed, in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Board notes, however, that presumptive service connection based on exposure to herbicide agents in Vietnam for early onset of peripheral neuropathy only applies if peripheral neuropathy manifested to a degree of 10 percent or more within one year of the last date of presumptive exposure. 38 C.F.R. § 3.307(a)(6)(ii). Nevertheless, absent such a presumption, a veteran may establish service connection on a direct basis if the evidence shows that his current peripheral neuropathy was, in fact, caused by exposure to herbicide agents or some other incident of service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. The Veteran’s service treatment records (STRs) do not contain complaints or diagnoses of any mental health condition. The relevant medical evidence of record includes post-service treatment records from 2008 to 2015. While these records reflect that the Veteran was prescribed medication for anxiety, there is no diagnosis of a disorder. In June 2015, the Veteran underwent a VA examination to determine whether he suffered from PTSD. The examiner reviewed the Veteran’s electronic claims file and provided a detailed overview of the Veteran’s history, noting that the Veteran began receiving psychiatric services three months prior. Under behavioral observations, the examiner indicated that the Veteran presented with euthymic mood, without evidence of psychosis, and proper hygiene and appearance. The Veteran reported that he sometimes has a short fuse, can become withdrawn, and, despite occasional bad dreams, sleeps well. Based on her observations, the VA examiner noted that the Veteran did not suffer from PTSD under the DSM-5. The Veteran also did not suffer from any other diagnosable mental disorder under either the DSM-5 or the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Although the Board recognizes that the Veteran recently began receiving psychiatric services, it finds that the thorough and detailed examination provided to the Veteran to be more probative of whether he currently suffers from an acquired psychiatric disorder. Given that the VA examiner found that the Veteran does not currently suffer from either PTSD or any other mental disorder under either the DSM-5 or DSM-IV, there can be no valid claim for service connection, and the Veteran’s appeal is denied. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. 2. Entitlement to service connection for sleep apnea is denied. The Veteran’s DD-214 displays that he is a recipient of the National Defense Service Medal and the Vietnam Service Medal. Thus, the Board is satisfied that the Veteran served in Vietnam and will presume his exposure to herbicidal agents. See 38 U.S.C. § 1116(f). In March 2010, the Veteran’s private treatment records reflect that he underwent a sleep study to determine whether he suffered from sleep apnea. That study confirmed a diagnosis of mild obstructive sleep apnea but contains no etiological opinion. The Veteran did not receive a separate VA examination. Nevertheless, VA’s duty to provide an examination has not been triggered. VA must provide the Veteran an examination where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has proffered evidence of a current disability, specifically medical records documenting a diagnosis of sleep apnea. He has submitted evidence establishing that an event occurred in service, specifically his statement that, during his period of service, he was exposed to agent orange. There is no indication in the evidence, however, that his sleep apnea is related to exposure to herbicide agents. Sleep apnea is not among the list of presumed diseases due to herbicidal exposure. See 38 C.F.R. § 3.309(e). There is no medical evidence in the record demonstrating a relationship between sleep apnea and exposure to herbicide agents. Indeed, there is no indication beyond the Veteran’s baseless speculation that his sleep apnea was caused by exposure to herbicide agents, and he has provided no evidence to indicate that his sleep apnea is otherwise related to service. The duty to assist therefore does not require a VA examination. See McLendon, 20 Vet. App. at 81. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s current sleep apnea is related to service, and service connection is denied. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to a sciatic nerve, is remanded. The Veteran’s STRs contain no complaints of nerve pain or any diagnosis associated with his lower extremities. Post-service medical records show that the Veteran was diagnosed with peripheral neuropathy of the bilateral lower extremities as early as 2007. Before the Veteran filed his January 2015 claim for entitlement to service connection for the issues addressed herein, he filed a December 2014 claim for entitlement to service connection for his back, neck, and peripheral neuropathy. In December 2014, the Veteran underwent a VA examination related to this claim. In pertinent part, that exam revealed that the Veteran had a diagnosis of bilateral peripheral neuropathy of the lower extremities. The report indicated that the Veteran’s neuropathy was due to lumbar radiculopathy, specifically sciatica. In June 2015, the Veteran underwent another VA examination. That examiner confirmed that the Veteran’s peripheral neuropathy of the bilateral lower extremities is due to his sciatica. While the Veteran does not allege that his presumptive exposure to herbicide agents is a cause of his peripheral neuropathy of the bilateral lower extremities, the Board still notes that said diagnosis did not emerge until 2007, roughly thirty years after the Veteran’s presumed exposure. As such, there can be no presumptive service connection for the Veteran on this claim. See 38 C.F.R. § 3.307(a)(6)(ii). The medical evidence shows that the Veteran’s peripheral neuropathy of the bilateral lower extremities is a product of his lumbar radiculopathy, unrelated to any injury to his feet. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s neuropathy is related to service, and service connection is therefore denied. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel