Citation Nr: 20031097 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 20-10 479 DATE: May 4, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for an eye disorder is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran had an acquired psychiatric disorder that was incurred in or was otherwise etiologically related to his active duty military service. 2. The preponderance of the evidence is against a finding that the Veteran’s eye disorder was incurred in or was otherwise etiologically related to his active duty military service. 3. The preponderance of the evidence is against a finding that the Veteran’s OSA was incurred in or was otherwise etiologically related to his active duty military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.3102, 3.303, 3.304, 3.317. 2. The criteria for entitlement to service connection for an eye disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.3102, 3.303, 3.304, 3.317. 3. The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.3102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1970 to October 1973. He received the National Defense Service Medal. The Veteran passed away in February 2018. The Appellant is his surviving spouse and has been substituted as the claimant pursuant to 38 U.S.C. § 5121A. See 38 C.F.R. § 3.1010(c)(2); see also Notification Letter dated July 31, 2019. The Board of Veterans’ Appeals (Board) expresses its gratitude to the Appellant for the Veteran’s honorable service to the country. These matters come before the Board on appeal from an August 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant submitted an Application for DIC, Death Pension, and/or Accrued Benefits in March 2018. According to the Court of Appeals for Veterans Claims (Court), a VA claim for accrued benefits is also a survivor’s VA claim of substitution. Reliford v. McDonald, 27 Vet. App. 297 (2015). See also 38 C.F.R. § 3.1010(c)(2). The Board notes that the RO has previously styled the above claims as ones involving “accrued benefits” (an alternative basis of jurisdiction, different from substitution); however, there is no indication in the record that the Appellant has disagreed with or has otherwise sought to appeal the July 2019 decision granting her substituted claimant status. Additionally, the Board observes that the Appellant included issues on the VA Form 9, Appeal to Board of Veterans’ Appeals, that had not been timely appealed by the Appellant in a Notice of Disagreement and were therefore not adjudicated by the RO in a Statement of the Case. Thus, the additional issues referenced in the VA Form 9 are not properly before the Board at this time and will not be further addressed in this decision. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board is broadening the claim of entitlement to service connection for a low vision condition to entitlement to service connection for an eye disorder. Service Connection Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred in or a disease contracted in active duty service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Court has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 19 (2007). In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder The record reflects that the Veteran initially requested service connection for a “mental condition” that was manifested by “dreams about when [he] was in Germany and [opposing military forces] were blowing up the tank farms.” See VA Form 21-4138, Statement in Support of Claim, dated December 16, 2016. The Appellant contends that entitlement to service connection for an acquired psychiatric disorder is warranted on the basis that the disorder was etiologically related to the Veteran’s active duty military service. Notably, the Appellant has variously phrased the acquired psychiatric disorder as a “mental condition” and/or “PTSD.” See VA Form 21-0958, Notice of Disagreement, dated December 7, 2018. The Board has rephrased the issue to include any acquired psychiatric disorder. See Clemons v. Shinseki, supra. A review of the record reveals that medical evidence does not provide a clear diagnosis of an acquired psychiatric disorder. Some documentation of record denies a diagnosis or history of depression, suggesting instead a possible mood disorder. See, e.g., medical treatment records dated November 8, 2017. Conversely, some records include mention of depression in the Veteran’s self-reported medical history. See, e.g., medical treatment records dated October 2, 2017. Without a diagnosis of an acquired psychiatric disorder by a competent medical professional, the claim for service connection cannot be granted. See, e.g., Brammer, supra. The Board notes that the Veteran’s claims file contains incomplete service treatment records (STRs). Where service records are destroyed or missing, VA has a heightened duty to assist a Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit of the doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). A formal finding indicates that the Veteran’s complete STRs were not found at the VA Records Management Center. See VA Memorandum dated January 4, 2018. The available STRs of record do not demonstrate that the Veteran experienced symptoms of, or received a diagnosis of, an acquired psychiatric disorder while on active duty service. Additionally, there is no evidence to indicate a nexus between a claimed diagnosis and an in-service event or an etiological association between a psychiatric disorder and the Veteran’s military service. As such, VA’s duty to assist to obtain a medical opinion is not triggered in this case, even with consideration of the heightened duty to assist. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the preponderance of the evidence demonstrates that entitlement to service connection for an acquired psychiatric disorder is not warranted. Because the preponderance of the evidence is against the claim, the “benefit-of-the-doubt” doctrine is not applicable; and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for an eye disorder The Appellant also seeks entitlement to service connection for the Veteran’s claimed eye disorder on the basis that the disorder was etiologically related to the Veteran’s active duty service. Medical records demonstrate that the Veteran experienced “dry eye syndrome of [the] bilateral lacrimal glands” manifesting in mildly distorted vision and dryness, serous detachment of retinal pigmen epithelium of the right eye, and eye drainage. See medical records dated November 8, 2017 and November 29, 2017. Available service treatment records from 1977 document that the Veteran had normal vision in both eyes, with no mention of compromised or impaired vision at that time. See service treatment records dated December 4, 1977. Furthermore, there is no evidence to suggest that any eye disorder the Veteran may have experienced was etiologically related to his active duty service. As such, VA’s duty to assist to obtain a medical opinion is not triggered in this case, even with consideration of the heightened duty to assist. McLendon v. Nicholson, 20 Vet. App. 79 (2006), Because the preponderance of the evidence is against the claim, the “benefit-of-the-doubt” doctrine is not applicable; and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for obstructive sleep apnea The Appellant seeks entitlement to service connection for the Veteran’s OSA, asserting that the disorder was etiologically related to the Veteran’s active duty military service. The record reflects that the Veteran underwent a sleep study in September 2017 and was subsequently diagnosed with OSA. See medical treatment records dated December 7, 2017. Available STRs do not provide any documentation of sleep apnea or its symptoms during active duty military service. Moreover, there is no nexus opinion of record addressing whether the Veteran’s OSA was incurred in or was otherwise etiologically related to his military service. Neither the Veteran nor the Appellant has made specific contentions regarding the onset or symptomatology of the Veteran’s OSA. As there is no indication that the Veteran’s OSA is related to service, VA’s duty to assist to obtain a medical opinion is not triggered in this case, even with consideration of the heightened duty to assist. McLendon v. Nicholson, 20 Vet. App. 79 (2006), The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits […].”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA […] the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.