Citation Nr: 18159688 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-30 521 DATE: December 19, 2018 ORDER Entitlement to service connection for sleep condition is denied. Entitlement to service connection for anxiety with nervousness (psychiatric disorder) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a sleep condition that had its onset in service or is otherwise related to any in-service disease, injury, or event. 2. The Veteran’s current psychiatric disorder has not been shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1978 to January 1979. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for sleep disorder The Veteran contends that his sleep condition is due to his military service. The Veteran’s service treatment records (STRs) do not document treatments, complaints, or diagnosis for a sleep condition. During his June 1978 Report of Medical History: Enlistment examination, the Veteran did not report having any mental illnesses. He stated that he did not have frequent trouble sleeping. The Veteran stated that he was in good health. The Veteran was not administered a separation physical, but he noted that there was no change in his medical history since his last examination. In January 2010, the Veteran was seen at the Oklahoma City VAMC. The Veteran denied having trouble falling, staying asleep or sleeping too much. The Veteran was not diagnosed with a sleep condition. Based on the evidence of record, the Board concludes that the Veteran does not have a diagnosis for a sleep condition. As such, element one under Shedden is not met. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board has considered the Veteran and his representative’s statements regarding the Veteran’s sleep condition. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and nexus between the sleep condition and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a sleep condition diagnosis by a medical professional and a nexus relating the sleep condition to the Veteran’s active service. The Board acknowledges that there is no VA opinion regarding the etiology of the Veteran’s sleep condition. However, as there is no credible lay evidence or competent medical evidence indicating that the Veteran has a sleep condition that was present in service or may be associated with his active service, a medical nexus opinion is not warranted, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (a conclusory lay nexus statement is not sufficient to trigger VA’s duty to provide an examination). The Board finds that the preponderance of the evidence is against the claim for service connection for sleep condition. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for anxiety with nervousness The Veteran contends that his psychiatric disorder is due to his military service. The Veteran has been diagnosed with anxiety. As such, element one under Shedden is met. The Veteran’s STRs do not document treatments, complaints, or diagnosis of anxiety or nervousness or anxiety with nervousness. During his June 1978 Report of Medical History: Enlistment examination, the Veteran did not report having any mental illnesses. He stated that he did not have depression or excess worry or nervous trouble of any sort. As noted above, the Veteran was not administered a separation examination, but he noted that there was no change in his medical history since his last examination. In January 2010, the Veteran was seen at the Oklahoma City VAMC. The Veteran was seen for psychiatric issues to include depression and anxiety. Based on the evidence of record, the Board finds that service connection for a psychiatric disorder is not warranted. The Veteran’s STRs do not show complaints, treatments, or diagnoses for a psychiatric disorder, to include anxiety, excessive worry, or nervousness. The first medical evidence of anxiety was in 2010, i.e., over 31 years after his discharge from active service. The fact that there were no records of any complaints or treatments involving the Veteran’s anxiety for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s psychiatric disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran’s psychiatric disorder and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran’s psychiatric disorder to service. The Board notes that the Veteran has not been afforded a VA examination to determine the nature and etiology of his psychiatric disorder; however, an examination is not warranted as the duty to assist has not been triggered. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Although McClendon sets a low bar, that bar has not been met here as there is no credible indication of a link between the Veteran’s current condition and his active service. The first medical evidence of the Veteran’s psychiatric disorder was in 2010, i.e., 31 years after active service. The only evidence of a possible connection between the Veteran’s disability and his service are the Veteran and his representative’s own broad and conclusory statements that the condition is related to service, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). In the absence of a nexus, the claim for service connection for psychiatric disorder is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See Gilbert, 1 Vet. App. at 55-56; 38 U.S.C. § 5107(b). Michael Lane Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel