Citation Nr: 20022014 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 18-42 815A DATE: March 30, 2020 ORDER New and material evidence has been received, and the claim of entitlement to service connection for a right ankle disorder is reopened. New and material evidence has been received, and the claim of entitlement to service connection for a left ankle disorder is reopened. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for right knee disorder is remanded. Entitlement to service connection for left knee disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A February 2012 final unappealed rating decision denied service connection for bilateral ankle disorder; evidence received since that decision relates to unestablished facts necessary to substantiate the claim. 2. Sleep apnea was not manifested in, and is not shown to be related to, the Veteran's service. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of entitlement to service connection for bilateral ankle disorder is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1973 to August 1976 and from June 1981 to November 1985. He also served in a Reserve component. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in May 2015 and November 2015 by a Department of Veterans Affairs (VA) Regional Office. In August 2015 the Veteran filed a notice of disagreement with respect to the decision to recoup separation pay that was paid to him. A statement of the case has not been issued. The matter is REFERRED to the RO for appropriate action. New and Material Evidence The Veteran’s claim of entitlement to service connection for bilateral ankle disorder was denied in a February 2012 rating decision. The claim was denied because a bilateral ankle disorder was not shown in service. The Veteran did not appeal that decision, and it became final. Evidence received since the February 2012 rating decision includes VA treatment records. The Board finds that the VA treatment records are new because they were not previously of record and they are material because they relate to unestablished facts necessary to substantiate the Veteran’s claim. Review of such records, addressing medical treatment, are pertinent to the Board’s inquiry in this case. This new and material evidence raises a reasonable possibility of substantiating this claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the claim of entitlement to service connection for bilateral ankle disorder is reopened. 38 C.F.R. § 3.156(a). This reopened service connection claim is addressed de novo on remand. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Sleep Apnea The Veteran asserts that complications of sleep apnea were first recognized during his military service in West Germany from 1974 to 1976. Service treatment records are negative for any complaints, treatment or diagnosis of sleep apnea. In October 1980 and August 1981 service medical history reports for Army officer candidate’s school, the Veteran noted he did not have frequent trouble sleeping. Clinical evaluation in October 1980 and August 1981 revealed no sleep apnea or related symptoms. The initial post-service reference to sleep problems is found in VA treatment records in August 2012 (more than 26 years after separation from active duty service) when the evidence shows the Veteran was scheduled for a sleep study. The Veteran did not report for the sleep study scheduled in August 2012. A sleep study in May 2015 revealed features compatible with moderate obstructive sleep apnea. The sleep study revealed further that the Veteran’s respiratory events were associated with mild oxygen desaturations. A diagnosis of obstructive sleep apnea was rendered. While a current disability is shown here, neither this record nor other competent evidence of record links the Veteran's sleep apnea to his military service. Moreover, the Veteran has not been afforded a VA nexus examination with respect to the claimed sleep apnea. As there has not been shown the possibility of a nexus between sleep apnea and service by competent evidence, VA has no duty to request an examination here. 38 C.F.R. § 3.159(c)(4). The Board has considered the Veteran's detailed statements regarding a history of sleeping problems and does not question his capability of observing and ascertaining such problems. That said, the Veteran lacks the training and credentials to attribute his subjective complaints to a diagnosis of sleep apnea, as opposed to transitory conditions or a different diagnosis. His assertions in this regard therefore do not constitute competent evidence of a diagnosis or etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the Veteran's sleep apnea was not manifested in and is not shown to be related to his active duty service. There is no doubt to be resolved; therefore, the claim of entitlement to service connection for sleep apnea must be denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral ankle disorder 2. Entitlement to service connection for bilateral knee disorder In his September 1973 service medical history report, the Veteran noted he had cramps in his legs. Because that report is dated September 5, 1973, one day prior to entering active duty service on September 6, 1973, the Veteran has essentially indicated having leg cramps prior to service. In his January 2016 notice of disagreement the Veteran notes that his bilateral knee and bilateral ankle disorders may be associated with his leg-limb length irregularity or discrepancy that was present during military service. The medical evidence shows that between 2013 and 2018, the Veteran was seen on numerous occasions at a VA clinic with complaints of knee and ankle pain. In November 2013 he had an assessment of bilateral ankle pain. In June 2016 he had an assessment of left ankle pain. X-rays of the knees taken in October 2015 show mild degenerative joint disease in the right and left knees. A September 2016 VA primary care attending follow-up note shows an assessment of knee pain. Remand is necessary in this instance to ascertain whether the Veteran’s bilateral knee and bilateral ankle disorders are the result of his active duty service or existed prior to his military service and was aggravated therein. 3. Entitlement to service connection for an acquired psychiatric disorder other than PTSD 4. Entitlement to service connection for PTSD The Veteran’s September 1973 service medical history report indicates he had “nervous trouble of some sort” prior to entering service, as the report is dated September 5, 1973, one day prior to entering active duty service on September 6, 1973. In his January 2016 notice of disagreement, the Veteran noted that PTSD and other mental health disorders may be due to aggravated circumstances during military service and traumatic experiences. The Veteran’s VA treatment records show current diagnoses of rule out psychotic disorder NOS [not otherwise specified], anxiety NOS, and cognitive impairment NOS (VA mental health initial evaluation note July 2013), unspecified psychotic disorder (VA mental health social work progress note October 2015 & June 2016), obsessive-compulsive and related disorder, unspecified psychotic disorder (VA mental health note July 2018), and psychosis, NOS, rule out schizophrenia versus schizotypal personality (VA psychiatry general progress note June 2018). Regarding PTSD, in an October 2013 geriatric medicine attending report, the Veteran’s military history was noted and included reference to him being in active combat in the Army and having PTSD symptoms. Remand is necessary to ascertain whether the Veteran’s psychiatric disorders including PTSD are the result of his active duty service or preexisted his military service and were aggravated therein. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from July 2018 to the present and associate those records with the Veteran's claims file. 2. Arrange for an appropriate VA examination to determine the nature and likely etiology of the Veteran’s claimed bilateral ankle and bilateral knee disorders. Pertinent evidence in the Veteran’s record must be reviewed by the examiner. Based on review of the record, examination and interview of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify (by diagnosis) each right and left ankle disorder found. (b) Please identify (by diagnosis) each right and left knee disorder found. (c) With respect to each ankle and knee disorders diagnosed that were proximate to or during the pendency of the claims, is it clear and unmistakable (obvious, manifest, or undebatable) that the disorders existed prior to active military service? And if so, is it also clear and unmistakable (obvious, manifest, or undebatable) that bilateral ankle and bilateral knee disorders were NOT aggravated during or by his active military service, that is, above and beyond the disabilities’ natural progression? Any such clear and unmistakable evidence must be specifically identified. (d) In the event that it is not clear and unmistakable (obvious, manifest, or undebatable) that any of the bilateral ankle and bilateral knee disorders referenced above either preexisted service or, if preexisting, were not aggravated by service, is it at least as likely as not (50 percent or greater probability) that bilateral ankle and bilateral knee diagnosed proximate to or during the pendency of the claim is etiologically related to the Veteran’s active duty service. All opinions must be supported by a rationale. 3. Arrange for the Veteran to be examined by a VA psychiatrist or psychologist to determine the nature and likely etiology of his claimed psychiatric disorders other than PTSD and PTSD. Pertinent evidence in the Veteran's record must be reviewed by the examiner. Based on review of the record, examination and interview of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify (by diagnosis) each acquired psychiatric disorder found. Regarding PTSD, prior to the examination the RO should specify for the examiner the stressor or stressors that it has determined are established by the record, and the examiner must be instructed that only those events may be considered for the purpose of determining whether the Veteran was exposed to one or more stressors in service. (c) If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each reported stressor found to be established by the evidence of record was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiner. (d) With respect to each psychiatric disorder diagnosed proximate to or during the pendency of the claims, is it clear and unmistakable (obvious, manifest, or undebatable) that the psychiatric disorder existed prior to active military service? And if so, is it also clear and unmistakable (obvious, manifest, or undebatable) that the psychiatric disorder was NOT aggravated during or by his active military service, that is, above and beyond the disability's natural progression? Any such clear and unmistakable evidence must be specifically identified. (e) In the event that it is not clear and unmistakable (obvious, manifest, or undebatable) that any of the disorders referenced above either preexisted service or, if preexisting, were not aggravated by service, is it at least as likely as not (50 percent or greater probability) that a psychiatric disorder diagnosed proximate to or during the pendency of the claims are etiologically related to the Veteran's active duty service. A complete rationale must be provided for all opinions. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.