Citation Nr: 20022572 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 20-03 601 DATE: April 1, 2020 ORDER New and material evidence has been received that is sufficient to reopen the claim for service connection for an acquired psychiatric disability, the claim is reopened; to this extent only the appeal is granted. New and material evidence has been received that is sufficient to reopen the claim for service connection for sleep apnea, the claim is reopened; to this extent only the appeal is granted. New and material evidence has been received that is sufficient to reopen the claim for service connection for a right knee disability, the claim is reopened; to this extent only the appeal is granted. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Service connection for sleep apnea is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. FINDINGS OF FACT 1. In an unappealed and final rating decision, dated in July 2007, the Regional Office (RO) denied claims for service connection for depression, anxiety, sleep apnea, and right knee pain. 2. The evidence received since the RO’s July 2007 decision, which denied claims for service connection for depression, anxiety, sleep apnea, and right knee pain, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claims. 3. The Veteran does not have an acquired psychiatric disorder, to include PTSD, due to his service. 4. The Veteran does not have sleep apnea due to his service. 5. The Veteran does not have a right knee disability due to his service. 6. The Veteran does not have a left knee disability that was caused by his service, or that was caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO’s July 2007 decision which denied service connection for depression, anxiety, sleep apnea, and right knee pain; the claims for service connection for an acquired psychiatric disorder, sleep apnea, and a right knee disability are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in United States Army from September 1990 to September 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) RO. Legal Criteria for New and Material Evidence and Service Connection Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” Smith v. West, 12 Vet. App. 312 (1999). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran’s claim in light of all the evidence, both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines “new” as not previously submitted and “material” as related 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, in Shade, the United States Court of Appeals for Veterans Claims stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). In such instances, a grant of service connection is warranted only when, “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” Id. Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Arthritis can be service connected on such a basis. In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 1. Service connection: acquired psychiatric disorder, sleep apnea, and right knee disability. The Veteran asserts that new and material evidence has been submitted to reopen claims for service connection for an acquired psychiatric disorder, sleep apnea, and a right knee disability. To avoid any prejudice to the Veteran, the Board has characterized the Veteran’s claims related to anxiety, depression, and right knee pain, broadly, as stated on the cover page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). At the time of the RO’s July 2007 decision, the evidence included the Veteran’s service treatment records, which did not include any complaints, treatment or findings for the right knee, or any complaints or findings associated with psychiatric or sleep symptoms. An examination report, dated in February 1992, showed that his psychiatric condition, and lower extremities, were clinically evaluated as normal. A separation examination report was not (and is not) of record. As for the post-service medical evidence, it included VA progress notes, dated as recently as 2006, which did not show any relevant treatment or diagnoses. At the time of the RO’s July 2007 decision, there was no evidence of record to show that the Veteran had an acquired psychiatric disorder, sleep apnea, or a right knee disability. The medical evidence received since the RO’s July 2007 rating decision includes VA progress notes, which show that the Veteran’s diagnoses include bipolar disorder, obstructive sleep apnea, and chronic right knee pain, status post-surgery, with X-ray evidence of a possible old fracture. This evidence, which was not of record at the time of the RO’s July 2007 decision, is not cumulative, and is “new” within the meaning of 38 C.F.R. § 3.156. The Board further finds that this evidence is material. Shade v. Shinseki, 24 Vet. App. 110 (2010) (38 C.F.R. § 3.159(c)(4) “does not require new and material evidence as to each previously unproven element of a claim”). The Board therefore finds that the new evidence is material, and that it raises a reasonable possibility of substantiating the claims. Accordingly, the claims for service connection for an acquired psychiatric disorder, sleep apnea, and a right knee disability, are reopened. 2. Service Connection for Acquired Psychiatric Disorder. The Veteran’s service treatment records were discussed, supra. They do not show any complaints of psychiatric, sleep, or right or left knee symptoms, or any other relevant findings. In a statement, received in February 2018, the Veteran’s spouse states that she began noticing changes in the Veteran in about mid-1994. She states that he was angry, depressed, and distant, in contrast to his previous disposition. He now avoids crowds and dislikes shopping. He drinks, takes his gun everywhere, and repeatedly check the locks on windows and doors. The Board first notes that following the RO’s July 2007 decision which denied service connection for anxiety, and depression, the Veteran filed a claim for PTSD in September 2017. In an associated statement, he reported that during basic training, between September and November of 1990, a member of his unit began screaming, yelling and throwing punches. Thereafter, he and others had to guard the soldier. He also reported that he witnessed a member of his unit attempt to assault a sleeping soldier with a shovel. The soldier was not harmed. See VA Form 21-0781a, received in September 2017. The Board has therefore included PTSD within the scope of the claim for service connection for an acquired psychiatric disorder. The Board notes that neither of the claimed in-service stressors are related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843-52 (July 13, 2010). As for the post-service medical evidence, VA progress notes show that in June 2009, the Veteran sought treatment for psychiatric symptoms. A mental health assessment, dated in July 2009, shows that the Axis I diagnosis was bipolar affective disorder, type 2. In September 2009, the Veteran was hospitalized for about three days. He stated that he had not received any psychiatric treatment prior to June 2009, and that the precipitating factor was the sudden death of his sister in January 2009. He was noted to have bipolar disorder, type 2, and depression with suicidal ideations. There was also a notation of bipolar disorder, mixed state; rule out PTSD. The Axis I diagnoses noted bipolar disorder, mixed type, and rule out ADD/HD (attention deficit disorder and hyperactivity disorder), and panic attacks. In December 2009, the Veteran was treated for complaints of psychiatric symptoms. He was noted to have bipolar affective disorder, type 2. Reports, dated in 2011, note bipolar 1 disorder, and bipolar 2 disorder. Reports, dated in 2016, include notations of “other specified trauma-and stressor related disorder, rule out PTSD.” In June 2017, the Veteran was noted to have possible PTSD symptoms. Between August and October of 2017, he underwent treatment in an 11-session “PTSD 101 Psycho-educational Group.” His diagnoses were bipolar disorder. In May 2016, the Veteran was noted to report “witnessing Desert Storm in Germany,” but indicated that he never deployed to Southwest Asia. He also reported being exposed to traumas following service at his job as a police officer for eight years, to include getting into physical altercations, and witnessing suicides, assaults, and violent crimes. He denied any abuse during military service. In May 2016, the Veteran was noted to report witnessing two suicides in boot camp, “right after it happened, a couple of hangings.” This evidence also notes a report of “suicide discovery” during service. These stressors are significantly different from the two stressors reported in the Veteran’s stressor statement, received in September 2017. In his September 2017 stressor statement, the Veteran reported witnessing an attempted assault, and having to guard a mentally unstable member of his unit, during basic training. The Veteran did not claim to have witnessed a suicide during service. VA progress notes also show that the Veteran has repeatedly complained of financial stressors, to include worrying about his financial situation, getting fired from his job, needing to pay bills, “bill collectors calling me,” and being unemployed. Given the inconsistencies with his stressor statements, the Board finds that the Veteran is not a credible historian in this regard. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). To the extent that the issue includes a claim for PTSD, the Board finds that the Veteran does not have PTSD. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Although there are some notations of PTSD, they tend to be accompanied by equivocal terms e.g., “rule out,” and the evidence overwhelmingly shows that the Veteran has repeatedly been found to have bipolar disorder. Accordingly, service connection for PTSD is not warranted because the medical evidence of record does not show a definitive diagnosis. With regard to the claim for an acquired psychiatric disorder (other than PTSD), service connection is not warranted. The Veteran is not shown to have received any relevant treatment during service. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303(a), (b). The earliest medical evidence of an acquired psychiatric disorder following separation from service is dated in 2009 (e.g., bipolar disorder). This is about 15 years after separation from service. There is no competent opinion of record in favor of the claim. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. 3. Service Connection for Sleep Apnea. The Veteran, through his representative, essentially contends that service connection is warranted for his sleep apnea on a direct basis, and that his sleep apnea was caused or aggravated by “what should be” service-connected PTSD. See Veteran’s representative’s statement, received in June 2018. The post-service medical evidence includes VA progress notes, which show that the Veteran complained of sleep symptoms in 2009. At that time, his sleep complaints were reported in association with psychiatric symptoms, with no mention of such symptoms as stopped breathing or snoring. Beginning in 2016, the Veteran was noted to have sleep apnea. A July 2016 sleep study contains an assessment of obstructive sleep apnea. Service connection for sleep apnea is not warranted. The Veteran is not shown to have made any relevant complaints, or received any relevant treatment, during service. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303(a), (b). The earliest medical evidence of sleep apnea following separation from service is dated in 2016. This is about 22 years after separation from service. There is no competent opinion of record in favor of the claim. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. In reaching this decision, the Board has considered a medical article submitted by the Veteran, which indicates that there may be a relationship between sleep apnea and “psychiatric pathology.” However, in this decision the Board has determined that service connection is not warranted for an acquired psychiatric disorder, to include PTSD. As service connection is not currently in effect for an acquired psychiatric disorder, this article does not show a “plausible causality” between the Veteran’s sleep apnea and his service that warrants a grant of the claim. Mattern v. West, 12 Vet. App. 222, 228 (1999). 4. Service Connection for Right Knee Disability. The Veteran argues that he has a right knee disability that is related to strenuous duties with an artillery unit, to include wearing boots while having flat feet, lifting ammunition, and jumping out of trucks. See Veteran’s representative’s statement, received in June 2018. The post-service medical evidence includes VA progress notes, which show that in 2006, the Veteran reported a work history that include work as a police officer, and a delivery driver. Beginning in 2010, the Veteran repeatedly reported a history of right knee symptoms beginning during his service, in 1990. He also reported a history of surgery in 1996, after he sustained “broken bones and torn tendons.” See VA progress notes, dated in January 2010 and February 2011. Other reports show that he reported a history of right knee surgery in 1991-92, or in 1994. See VA progress notes, dated in May and June of 2016, and July 2017. An X-ray report, dated in June 2017, notes evidence of an incomplete ossification of the ossification center or an old healed fracture. At that time, the Veteran denied a history of a knee injury. In 2017, the Veteran was also noted to have knee OA (osteoarthritis). Service connection for a right knee disability is not warranted. The Veteran is not shown to have made any relevant complaints, or received any relevant treatment, during service. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303(a), (b). Following service, the Veteran worked at jobs presumably requiring reasonable functioning of his knees, specifically, he worked as a police officer, and a delivery driver. The Veteran has provided a history of right knee surgery at some point in time between 1991 and 1992 (this was during service, and no such right knee surgery is shown), or, alternatively, following separation from service, sometime between1994 and 1996. No evidence of such right knee surgery is of record. The earliest medical evidence of a right knee disability following separation from service is dated in 2010. This is about 16 years after separation from service. There is no competent opinion of record in favor of the claim. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. 5. Service Connection for Left Knee Disability. The Veteran argues that he has a left knee disability that is related to strenuous duties with an artillery unit, to include wearing boots while having flat feet, lifting ammunition, and jumping out of trucks. See Veteran’s representative’s statement, received in June 2018. It is also argued, in essence, that he has a left knee disability that has been caused or aggravated by “what should be” his service-connected right knee disability. See Veteran’s appeal (VA Form 9), received in February 2020. The post-service medical evidence includes VA progress notes, which show that in 2016, the Veteran complained of bilateral knee pain, with notations of chronic knee pain. Service connection for a left knee disability is not warranted. The Veteran is not shown to have made any relevant complaints, or received any relevant treatment, during service. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303(a), (b). Following service, the Veteran worked at jobs presumably requiring reasonable functioning of his knees, specifically, he worked as a police officer, and a delivery driver. The earliest medical evidence of a left knee disability following separation from service is dated in 2016. This is about 22 years after separation from service. There is no competent opinion of record in favor of the claim. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. Conclusion. To the extent that the Veteran has asserted that service connection is warranted for sleep apnea, and bilateral knee disabilities, on a secondary basis under 38 C.F.R. § 3.310, service connection is currently in effect for bilateral hearing loss, and tinnitus. There is no basis to grant service connection as caused or aggravated by either of these service-connected disabilities. With regard to the Veteran’s own contentions, and the lay statement, 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 issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is claiming service connection for an acquired psychiatric disorder, to include PTSD, sleep apnea, and a right and left knee disability, and these are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. Id. The Veteran’s service treatment reports and post-service medical records have been discussed. The Veteran has been found not to have PTSD. The Veteran has also been found not to be an accurate historian. Given the foregoing, the Board finds that the medical evidence outweighs the appellant’s contentions, and the lay statement, to the effect that the Veteran has the claimed conditions due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). The Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.