Citation Nr: 18153559 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-08 528 DATE: November 28, 2018 ORDER Entitlement to service connection for acquired psychiatric disability, to include a mood disorder, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT A diagnosis of an acquired psychiatric disorder, to include a mood disorder, has not been provided at any point during the appellate period. CONCLUSION OF LAW The criteria for service connection for acquired psychiatric disability, to include a mood disorder, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1973 to August 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for acquired psychiatric disability, to include a mood disorder, is denied. Generally, to establish service connection a veteran must show: “(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 or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Veteran filed a claim for service connection for mood disorder. See August 2013 VA 21-526EZ, Fully Developed Claim (Compensation). The Board finds, however, that the evidence of record does not show that mood disorder or any other mental disability has ever been diagnosed. A review of the service treatment records, including the August 1973 entrance examination and May 1976 separation examination, shows that the Veteran had normal psychiatric evaluation. See October 2013 STR – Medical. In fact, the Veteran denied having depression, excessive worry, or nervous trouble of any sort. Id. A review of post-service treatment records shows that the Veteran has had unremarkable psychiatric findings. Specifically, the Veteran consistently screened negative for depression and posttraumatic stress disorder. See September 2012 CAPRI, August 2013 CAPRI, and September 2015 CAPRI. The Veteran stated that he does not feel down, depressed or hopeless nor does he have any nightmares, social avoidance, or detachment from others. The Veteran also stated that he is not on guard, watchful, or easily startled. Moreover, the treatment records do not note of any history of any psychiatric issues, including mood disorder. The Board acknowledges the Veteran’s statement that he has a mental disability. However, the Board finds that there is low probative value to the Veteran’s statement as he is not competent to identify his condition as such identification requires medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Thus, the Board finds that there is no competent and credible evidence of record that establishes that the Veteran has a mood disorder or any other mental disability. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for a mental disability but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran’s active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obliged to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds that in the instant matter, there is no competent evidence of a current diagnosis of any mental disability, and other than the Veteran’s allegations, the record does not indicate that there is any complaints or symptoms that may be associated with service. For these reasons, the Board finds a VA medical opinion is not necessary to decide the claim of service connection for a mental disability. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). Despite the Veteran’s claim for mood disorder, the evidence of record does not show that he has the claimed disability. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for acquired psychiatric disability, to include mood disorder. The benefit-of-the-doubt rule does not apply and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Board’s review of the claims file reveals that further action on the claim of entitlement to service connection for sleep apnea is needed. At the outset, the Board notes that the Veteran does not have a current diagnosis of sleep apnea. However, the treatment records show that the Veteran underwent a sleep study and was issued a CPAP machine in August 2015. See September 2015 CAPRI. The Board finds this treatment record highly probative as it indicates that the Veteran may have been diagnosed with sleep apnea. As such, the Board finds that a remand is necessary to obtain updated medical treatment records since 2015. Additionally, the Board notes that although a review of the service treatment records shows that the Veteran was noted to have normal neck, nose, sinuses, mouth, throat, lungs, and chest with no complaints of frequent trouble sleeping in his August 1973 entrance examination and May 1976 separation examination, the Veteran alleged that he exhibited symptoms of sleep apnea (e.g., loud snoring) in service and was witnessed by his Sergent. See October 2013 STR – Medical and September 2012 VA 21-4138 Statement in Support of Claim. The Board notes that there are no third-party statements attesting to this event. As such, the Board reminds the Veteran to submit any evidence to show that his sleep apnea incurred in service. If sufficient evidence is submitted, VA should order an appropriate examination. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The matter is REMANDED for the following action: 1. Obtain all outstanding VA and private medical records and associate them with the claims file. Specifically, obtain records from Loma Linda HCS from August 2015 to the present. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. If deemed appropriate by the RO, a VA examination should be scheduled with an appropriate expert to determine the likely nature and etiology of the Veteran’s claimed sleep apnea. The claims file should be thoroughly reviewed and the examination report should reflect that this has been accomplished. The VA examiner is requested to determine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed sleep apnea is the result of the Veteran’s active duty service. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, issue to the Veteran and his representative a supplemental statement of the case and give an opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel