Citation Nr: 20004492 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-35 762A DATE: January 21, 2020 ORDER New and material evidence having not been received, the application to reopen a claim for service connection for hepatitis C is denied. New and material evidence having been received, the application to reopen a claim for service connection for schizoaffective disorder is granted. Entitlement to service connection for a skin disability is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Service connection for schizoaffective disorder is granted. FINDINGS OF FACT 1. In an October 2005 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for hepatitis C; the Veteran did not initiate an appeal of the October 2005 decision during the one-year period following the mailing of notice of that decision, nor was any new evidence received within a year. 2. New evidence received since the time of the October 2005 decision, when considered with the evidence previously of record, is cumulative and redundant and does not relate to unestablished facts necessary to substantiate the Veteran’s claim for service connection for hepatitis C. 3. In a September 2002 rating decision, the AOJ denied service connection for schizoaffective disorder; the Veteran did not initiate an appeal of the September 2002 decision during the one-year period following the mailing of notice of that decision, nor was any new evidence received within a year. 4. New evidence received since the time of the September 2002 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for schizoaffective disorder and raises a reasonable possibility of substantiating the claim. 5. The preponderance of the evidence is against finding that the Veteran has a skin disability that may be related to service. 6. The preponderance of the evidence is against finding that the Veteran’s OSA is causally or etiologically related to any disease, injury, or incident in service. 7. It is at least as likely as not that the Veteran’s schizoaffective disorder is etiologically related to his active service. CONCLUSIONS OF LAW 1. The October 2005 rating decision, which denied service connection for hepatitis C, became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.204, 20.1103. 2. New and material evidence has not been received to reopen the Veteran’s claim for service connection for hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2002 rating decision, which denied service connection for a schizoaffective disorder, became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.204, 20.1103. 4. New and material evidence has been received to reopen the Veteran’s claim for service connection for schizoaffective disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for schizoaffective disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army July 1973 to August 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the VARO in Houston, Texas and a January 2017 rating decision issued by a VARO. This case was previously before the Board in August 2019, when the Veteran’s OSA claim was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). New and Material Evidence A previously and finally denied claim for service connection can be reopened and considered on the merits only if new and material evidence has been received since the last final denial of the claim. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The presentation of new arguments based on evidence previously of record does not constitute the submission of new evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). 1. Hepatitis C Service connection for hepatitis C was denied in an October 2005 rating decision on the grounds that service treatment records were silent for treatment for, or diagnosis of, hepatitis C, nor did they show a verified risk factor related to hepatitis C. The Veteran did not appeal the decision within one year, nor was any new evidence received by VA within that time. As a result, the October 2005 decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The additional evidence received since the final October 2005 rating decision includes private and VA treatment records. There is, however, no new evidence of an injury, disease, or event pertaining to hepatitis C, or evidence purporting to link the Veteran’s hepatitis C to service. The additional evidence is cumulative and redundant and does not relate to unestablished facts necessary to substantiate this claim. Accordingly, the Veteran’s the application to reopen the claim for service connection for hepatitis C must be denied. 2. Schizoaffective Disorder Service connection for schizoaffective disorder was denied in a September 2002rating decision on the grounds that the Veteran’s service treatment records were silent for treatment for or diagnosis of a mental condition and there was no link between the Veteran’s service and current condition (nexus). The Veteran did not appeal the decision within one year, nor was any new evidence received within that time. As a result, the September 2002 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Since that final decision, new and material evidence has been received. In May 2019, the Veteran submitted a May 2016 private medical opinion that his schizoaffective disorder began in service. This evidence relates to previously unestablished element of the Veteran’s claim and raises a reasonable possibility of substantiating it. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability). As such, the claim for service connection for schizoaffective disorder is reopened. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time of filing a claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Skin Disability The Veteran seeks to establish service connection a skin disability. For the reasons set forth below, the Board finds that the weight of the evidence is against the Veteran’s claim. As an initial matter, it is not entirely clear whether the Veteran has a current, cognizable skin disability. Although the record reflects that he was treated for a skin condition in January 2007, this was 4 years before he applied for service connection for a skin disability. Subsequent treatment records do not indicate the presence of a skin disability. In addition, the Veteran has not explicitly asserted that that he has pain or other manifestations pertaining to his skin that are productive of functional impairment of earning capacity. Even assuming that the Veteran has a current, cognizable skin disability, the competent and probative evidence of record does not demonstrate that any such disability may be related to service. There are no recorded complaints relative to the skin during service, to include at the time of the Veteran’s separation from service. Moreover, the Veteran specifically denied any skin diseases at the time of his separation. There is no medical evidence linking a current disability of the skin to service and the Veteran has not asserted continuity of symptoms since service. Moreover, as a lay person, the Veteran is not shown to have the medical training or specialized experience necessary to otherwise offer a competent opinion with respect to nexus. In arriving at these conclusions, the Board acknowledges that the Veteran has not been afforded a VA examination of his skin. However, in the absence of any competent and probative evidence indicating that a current skin disability “may be associated” with service, no examination is required. See 38 C.F.R. § 3.159(c)(4). In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b). 2. OSA The Veteran seeks to establish service connection for OSA. For the reasons set forth below, the Board finds that the weight of the evidence is against the Veteran’s claim. With respect to a current disability, the Veteran has a current diagnosis of OSA. See January 2019 VA Examination. Thus, the first element of service connection is met. See Davidson, supra. With respect to nexus to service, however, the Board finds that the probative evidence of record does not support a link between the Veteran’s current disability and service. Service treatment records (STRs) show no complaints of, diagnoses of, or treatment for sleep apnea. The July 1975 service separation examination report reflects that sleep apnea was not noted, and the concurrent report of medical history shows that the Veteran did not report any symptoms of sleep apnea, and specifically denied a history of frequent trouble sleeping at service separation. A December 2019 VA examiner provided a negative nexus opinion. In doing so, the examiner reasoned that the Veteran’s STRs were silent for sleep apnea, that the service separation examination report did show sleep apnea, and that the Veteran was not diagnosed with OSA until December 2019. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim. While the evidence of record shows that the Veteran has diagnosis of OSA, the probative evidence demonstrates that it is not related to service. In this regard, the Board places great probative weight on the December 2019 VA examiner’s opinion as it sets out clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, Stefl. The Board acknowledges the Veteran’s contentions to the effect that his current symptoms are related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that they have observed and are within the realm of their personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In the instant case, the Board finds that questions regarding the potential relationship between the Veteran’s OSA and any instance of service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more comp1ex medical questions). Thus, while the Veteran is competent to describe the manifestations of his OSA, the Board must accord his lay statements regarding the etiology of his OSA little probative value. Based on the foregoing, the Board must find that his current OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. As such, that doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Schizoaffective Disorder The Board finds that it is at least as likely as not that the Veteran’s schizoaffective disorder is etiologically related to his active service. With respect to a current disability, the Veteran has a current diagnosis of schizoaffective disorder. See May 2019 private opinion. Thus, the first element of service connection is met. See Davidson, supra. With respect to an in-service event, the Veteran attributes his current condition to his service. Specifically, the Veteran provided a statement from his ex-wife in November 2015 and statements from his brothers in February 2016 which detailed a difference in the way the way the Veteran acted after joining the military. In one statement the Veteran’s brother discussed an incident in which the Veteran was absent without official leave (AWOL) during his service. Indeed, the Veteran’s STRs reflect that he was AWOL for a period of 28 days between November 1973 and December 1973. Furthermore, the Veteran’s STRs reflect that he was deemed not eligible for reenlistment. Based on the foregoing, the Board finds that the second element of service connection has been met. See id. The remaining question is whether there is competent evidence establishing a connection between the Veteran’s schizoaffective disorder and service. In May 2019, a private psychologist opined, in a detailed review of the Veteran’s records and medical studies, that the Veteran’s schizoaffective disorder began in service and continued to the present. The Board has reviewed the medical opinion with respect to nexus and finds that the evidence in support of the Veteran’s claim is no less probative than the evidence against it. Resolving reasonable doubt in the Veteran’s favor, the third and final element of service connection has been met. Service connection for schizoaffective disorder is, therefore, granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.