Citation Nr: 18161176 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-33 493 DATE: December 28, 2018 ORDER Service connection for sleep disorder diagnosed as obstructive sleep apnea (OSA) is denied. Service connection for hypertension is denied. Service connection for an acquired psychiatric disorder to include anxiety and depression is denied. FINDINGS OF FACT 1. The Veteran’s sleep disorder is associated with an established clinical diagnosis of severe OSA, which did not have its onset during active military service and is not otherwise shown to be related to service. 2. The Veteran’s hypertension did not manifest during service or within one year of separation from service, is diagnosed and medically explained, and is not related to any disease, injury or exposure during service. 3. To the extent that the Veteran has had an acquired psychiatric disorder during or near to the pendency of this appeal, an acquired psychiatric disorder did not have its onset during his active service or soon thereafter, and is not related to in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep disorder diagnosed as OSA, to include as due to an undiagnosed or medically unexplained chronic multisymptom illness, have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for entitlement to service connection for hypertension, to include as due to an undiagnosed or medically unexplained chronic multisymptom illness, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1991 to December 1995. The Veteran has qualified active service in the Southwest Asia Theater of operations during the Persian Gulf War. These matters come to the Board of Veterans Appeals (Board) from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally 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 claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) 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. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2021 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia Theater of operations). See 77 Fed. Reg. 71382 (2016). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. §§ 3.317(a), (b). The term “qualifying chronic disability” means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a sleep disorder, diagnosed as OSA. 2. Entitlement to service connection for hypertension. Issues 1-2. The Veteran contends that he developed a chronic multisymptom illness after serving in Southwest Asia during the Persian Gulf War. In the alternative, he claims that his OSA and hypertension are directly related to, or resulted from, his military service. The Board concludes that, while the Veteran has a diagnosis of OSA, the preponderance of the evidence weighs against finding that the Veteran’s sleep disorder diagnosed as OSA had its onset during active service; is otherwise related to active service; or is an undiagnosed illness or part of a medically unexplained chronic multisymptom illness (MUCMI). 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317. The Board further concludes that, while the Veteran has hypertension, the preponderance of the evidence weighs against finding that the Veteran’s hypertension had its onset during active service; manifested to a compensable degree within the initial post separation year; is otherwise related to active service; or is an undiagnosed illness or part of a MUCMI. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. Service connection is not warranted on a direct basis as both sleep disorder diagnosed as OSA and hypertension are first documented years after service separation and have not been linked to service by competent evidence. Service treatment records (STRs) reflect no complaints or findings for hypertension or a sleep disorder. An August 1995 service separation examination reflects normal clinical evaluation of the lungs, heart and vascular system, and the Veteran denied a history of trouble sleeping and high blood pressure. A June 1996 Annual Certificate of Medical Condition reflects that the Veteran denied illnesses/diseases in last 12 months, physician’s care in last 12 months, taking medications in last 12 months, and having any physical or mental defects that might restrict performance or prevent mobilization for active duty. June 1996 and July 2001 Dental Health Questionnaires reflects that the Veteran denied hypertension. A May 1999 Report of Medical History reflects that the Veteran denied high blood pressure and trouble sleeping. A July 2001 Report of Medical History reflects that the Veteran denied high blood pressure and trouble sleeping. Hypertension is first documented in 2013, more than a decade after service discharge and well beyond the applicable presumptive period. Similarly, OSA is first documented in 2013. The above evidence does not tend to show onset of sleep problems diagnosed as OSA or hypertension during active service, or that hypertension manifested to a co compensable degree within the initial post separation year. The Board has a June 2013 letter from private nurse practitioner. This reflects that the Veteran was treated for hypertension, fatigue and anxiety; that he was found to have sleep apnea by a specialist; and that the Veteran believes his problems are related to his military service. This letter does not reflect any medical opinion in this matter; but rather reflects treatment and the Veteran’s contention without any endorsement of that belief. Therefore, the evidence has no probative value as it neither weighs for nor against the claim. The Board accepts that the Veteran is competent to report his symptoms and treatment. However, his is not competent to diagnose himself with hypertension in service as he lacks the requisite medical training and because a diagnosis is not susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also, to the extent that he reports onset of sleep disorder, including OSA, during active service, the Board finds that he is not credible in view of his denial of sleep trouble on service separation examination and post service medical histories, coupled with the normal clinical evaluation on service separation and the many years intervening active service and the first documented complaints/findings. Therefore, the Veteran’s statements have diminished probative value. The Board assigns greater probative value to the STRs, which show no findings for hypertension or sleep trouble including OSA. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Also, the Board assigns greater probative value to the many years intervening service and the first documented findings or complaints of hypertension and sleep trouble diagnosed as OSA. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). The Board has considered whether benefits may be granted under 38 U.S.C. §1117 and 38 C.F.R. § 3.317 given the contention that his conditions are attributable to service in the Persian Gulf. However, neither sleep disturbance diagnosed as OSA nor hypertension are undiagnosed illnesses or shown to be symptoms of a MUCMI. A December 2016 VA Gulf War examination reflects that the Veteran “does not have an undiagnosed illness and he also does not have a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology.” The examiner provided a complete explanation for the conclusions reached. The Veteran has not provided a favorable medical opinion to weigh in this matter. Therefore, the Board finds that the VA examination is more probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). On balance, the weight of the evidence is against the claims. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include anxiety and depression. He reported in November 2013 that he believes his anxiety is secondary to OSA. His represented argued in October 2018 that the Veteran reported onset of mood swings and mild depression in 1996 soon after his active service. The Board concludes that, while the Veteran has been diagnosed with acquired psychiatric disabilities during the pendency of this appeal, the preponderance of the evidence weighs against finding that an acquired psychiatric disability had its onset in service or is otherwise related to in-service injury or disease. STRs reflect no complaints, findings, or diagnoses for an acquired psychiatric disorder to include anxiety and depression. A July 1993 Report of Medical History reflects that the Veteran denied depression, excessive worry and nervous trouble. A February 1995 service separation examination reflects normal clinical evaluation of the psychiatric system and that the Veteran denied depression, excessive worry, and nervous trouble. A June 1996 Annual Certificate of Physical Condition reflects that the Veteran denied medical problems that might restrict his performance on active duty or prevent mobilization. May 1999 and July 2001 medical histories reflect that he denied depression, excessive worry, and nervous trouble. Additionally, an April 2002 private health history checklist reflect that the Veteran essentially denied depression or nervousness. A July 2002 VA treatment note shows that a depression screen was negative with a score of zero. Mental health problems are first documented in 2013—anxiety complaints and depressive disorder were noted. July and September 2016 letters from a physician with psychiatric medicine reflects that the Veteran was under caser for depression with “shift work sleep disorder.” The etiology was not addressed. VA medical records include a 2016 mental health screen that was negative for PTSD. The Veteran reported that he was employed with the Federal Government; enjoyed weightlifting and treadmill; had a life goal to retire; had social support from co-workers; and had current stressor related to work. A July 2016 entry reflects a history of treatment for depression and anxiety. The Veteran reported that states he does not feel depressed or anxious. A December 2016 entry reflects that the Veteran had been diagnosed in 2012 with depression by a private doctor. A July 2017 VA examination reflects that “the Veteran does not currently meet DSM-5 criteria for any mental health disorder.” The evidence does not show onset of an acquired psychiatric disorder in service or that any disorder diagnosed after service is related to in-service injury or disease. The Board accepts that that the Veteran is competent to report his symptoms and treatment. However, his is not competent to diagnose himself with an acquired psychiatric disorder in service as he lacks the requisite medical training and because a diagnosis is not susceptible to lay observation—mental disorders must be diagnosed in accordance with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DMS-5). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also, to the extent that he reports depression and/or anxiety during active service or soon after, the Board finds that he is not credible in view of his denial of these problems on service separation examination and the recent post service inactive duty medical histories. Therefore, the Veteran’s statements have little probative value. Although the Veteran provided letters from private medical providers in this appeal, these letters have no probative value because they do address the etiology of any disorders found or reflect that the conditions diagnosed/treated had their onset during the Veteran’s active service. It is noted that the transcription of medical history given by the Veteran into the medical record does not transform that history into competent medical evidence of in-service onset. LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). The Board assigns greater probative value to the STRs, which show no findings for psychiatric problems or disorder during active service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Also, the Board assigns greater probative value to the many years intervening service and the first documented findings or complaints of mental health problems. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffey, Associate Counsel