Citation Nr: 1807603 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-07 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2013 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder, to include PTSD and depressive disorder, which has been shown to have begun during service, been aggravated by service, or have otherwise resulted from the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD and depressive disorder, have not been met. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided. Additionally, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA treatment records, and private treatment records are associated with the claims file. The Veteran was offered the opportunity to testify at a Board hearing but he declined. With regard to the claim for an acquired psychiatric disorder, the Board finds that the VA examination and opinions of record that were provided are fully adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disabilities and contentions, and grounded the medical opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor his representative has objected to the adequacy of the examination conducted. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Historically, the Veteran filed a claim of entitlement to service connection for PTSD in October 2011. The Veteran's claim for PTSD was denied in a February 2013 rating decision and the claim for major depression was denied is a May 2013 rating decision. The Veteran disagreed with the denial of his claims and this appeal ensued. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). A review of the Veteran's service treatment reports (STRs) does not reflect any complaints, findings, or treatment for any psychiatric disorder. Post-service VA treatment reports reflect a diagnosis of major depressive disorder in June 2011. At a VA examination in December 2012, the Veteran was diagnosed with personality disorder not otherwise specified with Cluster B traits and depressive disorder. The examiner indicated that the Veteran did not meet the diagnostic criteria for PTSD. In April 2013, the claims file was returned to the examiner who conducted the February 2013 VA examination and the examiner opined that the Veteran's major depressive disorder was less likely than not caused by or related to service. The examiner noted that the prevalence of depression in the United States is high and often co-morbid or linked with to specific situational stressors and a personality disorder. The examiner cited to various medical literature to support his rationale. Considering all the evidence of record, the Board has determined that the Veteran does not have an acquired psychiatric disorder, to include PTSD and major depressive disorder related to his active military service. With regard to the claim for PTSD, neither the private nor VA treatment records associated with the claims file include a diagnosis of PTSD and the Veteran did not meet the diagnostic criteria for PTSD when examined in December 2012. The cornerstone requirement for service connection for PTSD is a diagnosis of PTSD, as without proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With regard to the claim for additional psychiatric disorders, while the record reveals a diagnosis of major depressive disorder, the record does not include any opinions linking any acquired psychiatric disorder to the Veteran's active duty service. The only opinion of record indicates that the Veteran's acquired psychiatric disorder is unrelated to service. Consequently, in the absence of any objective medical evidence linking an acquired psychiatric disorder to service, service connection is not warranted for an acquired psychiatric disorder other than PTSD. To the extent the Veteran believes that he has an acquired psychiatric disorder, to include PTSD and major depressive disorder from service, he lacks the medical training and expertise to address a complex medical question such as diagnosing a specific psychiatric disability and providing the etiology for any such diagnosed psychiatric disorders. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Veteran's opinion alone is insufficient to establish that he has PTSD or major depressive disorder and his opinion is insufficient to provide an opinion as to the etiology of the diagnosed psychiatric disorder of record. Accordingly, the Veteran's claim for service connection for an acquired psychiatric disorder to include PTSD and major depressive disorder is denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder is denied. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim for service connection for sleep apnea can be reached. In a February 2014 Statement of the Case (SOC), the RO indicated that the Veteran was afforded a VA examination for his sleep apnea in February 2014. A review of the Veteran's claims file (both VBMS and Virtual VA) indicates that the February 2014 VA examination report is not of record. In order to properly adjudicate the claim, the February 2014 VA examination report should be associated with the claims file. If the examination report is not available, the Veteran should be afforded another VA examination for his claimed sleep apnea. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate the February 2014 sleep apnea VA examination report with the claims file. If the VA examination report is not available, schedule the Veteran for another examination and obtain an etiology opinion with regard to his diagnosed sleep apnea. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters 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. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs