Citation Nr: 18157174 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 16-23 050 DATE: December 12, 2018 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) with an unspecified neurocognitive disorder is denied. Service connection for obstructive sleep apnea (OSA) is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. Veteran served on active duty from January 1969 to December 1970, including a period in Vietnam. 2. An acquired psychiatric disorder, to include MDD with an unspecified neurocognitive disorder, was not shown in service and is not etiologically or causally related to service. 3. OSA was not shown in service and is not etiologically or causally related to service or to a service-connected disability. 4. Hypertension was not shown in service, was not shown to a compensable degree within one year of service, was not continuous since service, and is not causally or etiologically related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include MDD with an unspecified neurocognitive disorder, was not incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. OSA was not incurred in service nor is it proximately due to or is aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 3. Hypertension was not incurred in service nor is it proximately due to or is aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, in January 2018 and April 2018, the Veteran filed timely notices of disagreement (NODs) with January 2018 and March 2018 rating decisions regarding coronary artery disease. The RO has fully acknowledged the NODs and are currently in the process of adjudicating the claims. As action by the Board could delay the RO’s actions on those appeals, the Board will not take jurisdiction of those issues at this time. Turning to the claims on appeal, 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 be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may 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). Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). The Veteran served in Vietnam but the enumerated diseases which are associated with herbicide exposure do not include any of the claims on appeal so this theory of entitlement will not be discussed further. 38 C.F.R. § 3.309(e). Acquired Psychiatric Disorder The Veteran claims entitlement to multiple psychiatric disorders including MDD, a neurocognitive disorder, PTSD, anxiety, and an adjustment disorder, which he asserts began in or are otherwise related to active duty service. At the outset, he has a current diagnosis of MDD and of an unspecified neurocognitive disorder from a July 2014 VA examination. Additionally, VA clinical records from 2014 onward document treatment for anxiety to include treating a diagnosis of unspecified anxiety disorder. However, he has been specifically found not to have PTSD. Nonetheless, a current psychiatric diagnosis is shown. As to in-service occurrence, the service treatment records (STRs) are silent for any complaints or treatment of an acquired psychiatric disorder during active duty service. Therefore, the evidence does not support direct service connection. To the extent that the Veteran asserts a medical nexus between his psychiatric symptoms and service, the medical evidence weighs against the claim. Specifically, in a July 2014 VA examination, the Veteran was diagnosed with an unspecified neurocognitive disorder. The examiner opined that this disorder was unrelated to reported military stressors because the onset followed the Veteran’s treatment for encephalitis in 1988. The examiner also diagnosed a depressive disorder but found that it was unlikely related to service. Additionally, this examination indicated that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD. This evidence weighs against the claim. An April 2015 evaluation at a private counseling center at the behest of the Veteran’s then-service representative included a diagnosis of major or mild neurocognitive disorder due to encephalitis. This examination did not diagnose depressive disorder, anxiety disorder, or adjustment disorder. The clinician noted that the Veteran did not meet the DSM criteria for a diagnosis of PTSD. The clinician opined that the Veteran’s psychological symptoms were less likely than not connected to service in Vietnam. This evidence also weighs against the claim. In January 2016 a VA psychologist reviewed the Veteran’s claims file including the evidence received since the July 2014 VA examination and noted that it is less likely than not that the Veteran’s diagnosed mental health disorder was incurred during active duty service. This evidence also weighs against the claim. In November 2017, the Veteran’s attorney submitted a private mental status evaluation. The clinician concluded that the Veteran’s MDD began during service. She reviewed the Veteran’s activities of daily living and symptoms and concluded that the diagnosis of unspecified neurocognitive disorder symptoms could not be differentiate from the MDD symptoms. The clinician also reflected on a body of literature associating hearing loss and tinnitus to psychiatric diagnoses and concluded that his MDD began in service, continued uninterrupted to the present and was aggravated by hearing loss and tinnitus. While supporting the claim, the Board assigns this evaluation less probative value as it is outweighed by the medical evidence indicating that the Veteran’s psychiatric disorders were not related to service. Unlike the other clinicians, she determined that the symptoms of MDD and the neurocognitive disorder could not be distinguished. However, the medical evidence reflects studies specifically outlining the neurocognitive symptoms related to encephalitis. As the November 2017 evaluation is inconsistent with the weight of the medical evidence, the Board assigns it less probative value and finds that the medical evidence does not support the claim. Obstructive Sleep Apnea The Veteran contends that he has a current diagnosis of OSA which was aggravated by his service connected MDD. As to a current diagnosis, while a February 2008 sleep study did not show OSA, he was started on a trial of CPAP. His current problem list includes a diagnosis of OSA. Therefore, a current diagnosis is shown. The STRs are negative for complaints of, treatment for, or a diagnosis of OSA. Further, the Veteran has not asserted that the disorder started in service. Therefore, direct service connection is not warranted. Rather, the Veteran contends that OSA is related to MDD. While a December 2017 private clinician found that MDD aided in the development of and permanently aggravated his sleep apnea, the Veteran is not currently service connected for a psychiatric disorder. As noted above, in order to warrant secondary service-connection, there must be evidence of a current disability (OSA is shown), evidence of a service-connected disability, and a link between the two. Here, the Veteran is service-connected for coronary artery disease, tinnitus, and hearing loss. The evidence does not show, and he does not contend, that these service-connected disabilities have caused OSA. Therefore, the medical evidence does not support the claim on a secondary basis. Hypertension First, it is unclear precisely when the Veteran was diagnosed with hypertension as it was not on the Problem List in 2017; however, it is listed in January 2018. Therefore, a current disability is shown. Next, the Veteran’s service treatment records (STRs) do not show treatment for or a diagnosis of hypertension. At the time of separation, his blood pressure reading was 120/60. Therefore, hypertension was not shown in service and the medical evidence does not support direct service connection. Additionally, hypertension, which is a chronic disease under 38 C.F.R. § 3.309(a), did not manifest to a compensable degree within one year after service separation, and continuity of symptomatology is not established. As noted, treatment records show a diagnosis of hypertension around 2018, decades after his separation from service in 1970, well outside of the applicable presumptive period. Therefore, the medical evidence does not support the claim based on chronicity or continuity. To the extent that hypertension may be due to his service-connected coronary artery disease (CAD), the medical evidence does not support the claim. Importantly, no medical evidence directly supports an etiological connection between the Veteran’s CAD and hypertension. Of note, no medical examiner or treating physician has associated CAD with hypertension. Therefore, the third element has not been met and the medical evidence does not support secondary service connection. With respect to the claims, the Board has considered the Veteran’s and his family’s lay statements that his claims were caused by service. As to his psychiatric claim, he contends that his mental health disorders were related to combat deployment in Vietnam and that his behavior after active duty reflected a maladjustment in society which occurred long before his encephalitis. His family described his behavior both before and after returning from his service in Vietnam and his struggles adjusting back to society. He and his family also discussed his difficulty with sleeping and sleeping on the floor after his return from service. The Veteran and his family are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, they are not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination reports and clinical findings than to their statements. As such, the medical records are more probative than the lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeals are denied. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham, Law Clerk