Citation Nr: 18150549 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-39 969 DATE: November 15, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to service-connected disabilities is granted. REMANDED Entitlement to service connection for a psychiatric disorder, to include depression, anxiety and posttraumatic stress disorder (PTSD), to include as secondary to service-connected sinusitis, is remanded. FINDING OF FACT The Veteran’s OSA is secondarily related to his service-connected sinusitis. CONCLUSION OF LAW The criteria for an award of service connection for OSA have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty for training from February 1987 to May 1987, and active service from October 1988 to May 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits being sought. Jurisdiction currently lies with the Oakland, California RO. In August 2012, an Administrative Decision deemed the Veteran’s period of service from October 1988 to May 1990, not honorable for VA purposes. The Veteran did not appeal this finding. VA benefits are not payable unless the period of service that the claim is based upon was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C. § 5303 (2012); 38 C.F.R. § 3.12 (a) (2017). Therefore, service connection is barred for any disability incurred in or aggravated by his second period of service, from October 1988 to May 1990. The Board has rephrased the Veteran’s claim of entitlement to service connection for depression as a claim of entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). Entitlement to service connection for OSA is granted Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b) (201); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to 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 nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The first two elements of a secondary service connection claim are met in this case. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that OSA was incurred in service, and in the alternate, due to his service-connected sinusitis. The Veteran has been diagnosed with OSA, and he is service-connected for sinusitis. The first and second elements of a secondary service connection claim are satisfied. Wallin, 11 Vet. App. at 512. In support of his claim, the Veteran provided a positive private nexus opinion, dated in August 2017, from Dr. H. S., who opined that the Veteran’s OSA is secondary to his sinus condition which “more likely than not, aided in the development of and permanently aggravates his OSA.” In support of his position, he cited the VA examination of February 2014, in which the Veteran reported that he could not concentrate because of the constant pain affecting his eyes and vision. Dr. H. S.’s rationale also includes VA treatment records stating that the Veteran has nasal congestion. Moreover, he cited research showing a relationship between sinusitis and OSA, and one study which “demonstrated [that] nasal congestion may lead to nasal collapse, airway construction, and increased number of sleep microarousals.” The Board finds that Dr. H. S.’s, opinion is highly probative evidence in support of a nexus between the Veteran’s OSA and his service-connected sinusitis. Id. The preponderance of the evidence is in favor of service connection for OSA on a secondary basis. 38 U.S.C. § 5107 (b) (2012). Service connection for OSA is, therefore, granted. 38 C.F.R. § 3.310 (2017). REASONS FOR REMAND Entitlement to service connection for a psychiatric disorder is remanded The Board has determined that additional development is needed before adjudication of the Veteran’s claim. The Veteran has asserted that his psychiatric disorder was incurred in service, and in the alternate, is due to his service-connected disabilities. The Veteran has provided a private nexus opinion, dated in August 2017, from Dr. H. H-G, who has diagnosed the Veteran with an unspecified depressive disorder and concluded that it “more likely” began in service and is also aggravated by his sinusitis. In support of her position for direct service connection, Dr. H. H-G. relied solely on five generic medical treatises. Regarding the secondary service connection theory, Dr. H. H-G. stated as her rationale that “individuals with medical issues and depressive disorder debilitation become disabled due to the holistic effect of medical and psychiatric disturbances … just like sinusitis with headache symptom, left index finger tenosynovitis, left index finger scar and secondary depressive disorder endured by [the Veteran].” While the Board acknowledges the private nexus opinion, it has found it lacking a thoroughly supported rationale for both direct and secondary service connection. Nieves-Rodriguez v. Peak, 22 Vet. App. 295 (2008). Dr. H. H-G. did not address whether the Veteran’s depression was incurred during his honorable period of service, nor did she offer any evidentiary support for her position regarding secondary service connection. Therefore, the opinion is inadequate. However, it meets the low threshold needed to trigger VA’s duty to provide a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his acquired psychiatric disorder. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. February 2017 dated letter from Y. P., the Veteran’s cousin, stating that the Veteran was a smart, happy, even-tempered and outgoing child before he entered service. b. August 2012 Administrative Decision finding the Veteran’s period of service from October 1988 to May 1990 not honorable for VA purposes. c. The August 2017 opinion of Dr. H. H-G. finding that the Veteran’s depression more likely began in service and is aggravated by his sinusitis. The examiner must provide a diagnosis for each psychiatric disability found. For each diagnosis, the examiner must provide opinions as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder began during active service or is related to an incident of service. b. Whether the Veteran’s acquired psychiatric disorder was caused by his service-connected disabilities to include sinusitis with headache symptom, left index finger tenosynovitis and left index finger scar. c. Whether the Veteran’s acquired psychiatric disorder was aggravated by his service-connected disabilities to include sinusitis with headache symptom, left index finger tenosynovitis and left index finger scar. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 2. Then, readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel