Citation Nr: 20042310 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 18-30 507 DATE: June 22, 2020 ORDER 1. Entitlement to service connection for mild obstructive sleep apnea (OSA) is denied. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. (A decision addressing the claims for service connection for a psychiatric disorder, other than PTSD, and traumatic brain injury will be issued separately, as such issues fall under the Appeals Modernization Act.) FINDINGS OF FACT 1. Obstructive sleep apnea did not manifest during service and is not otherwise related to service. 2. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for PTSD is not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1992 to February 1997. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the hearing was prepared and associated with the Veteran’s claims file. At the hearing, the Veteran requested to leave the record open for 90 days to add additional evidence to the record. That request was granted. However, to date, the Veteran did not supply any additional information to the record. The Veteran’s representative stated that they intended to get additional information from the Veteran’s VA psychiatrist, F.F., and would waive consideration by the agency of original jurisdiction. The Board knows that there are additional VA treatment records from F.F. Therefore, the Board of Veterans’ Appeals (Board) will evaluate the claims based on what is found in the Veteran’s claims file. Additionally, the Veteran filed claims service connection for traumatic brain injury (TBI) and psychiatric disorder, other than PTSD. As those claims were filed under the Appeals Modernization Act system, they are addressed in a separate decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claims on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 1. Entitlement to service connection for obstructive sleep apnea The Veteran believes that his obstructive sleep apnea had its onset in service. At the Board hearing, the Veteran’s representative acknowledged that the Veteran was not diagnosed with obstructive sleep apnea while on active duty, but stated that shortly after separating from active duty, he began experiencing some problems. The Veteran testified that a few months after he left the service, he was not sleeping well. He said he does not sleep a lot anymore without a sleep aid. He said that he is consciously falling asleep and notices that he is not breathing, so he has to wake up. However, if he is using a sleep aid, that does not happen constantly. He reported that his ex-wife and his parents have noticed that he does not snore but will stop breathing. The Veteran also testified that this started in 1997, as it was when his anxiety did not allow him to get to do things with people. The Board has carefully reviewed the evidence of record and finds the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea. The reasons follow. As to evidence of a current disability, a May 2017 VA medical record shows that the Veteran had mild obstructive sleep apnea. Therefore, the Veteran meets the first element of a service-connected claim. As to evidence of an in-service disease or injury, the service treatment records do not show that the Veteran complained of or was treated for obstructive sleep apnea during service. The Veteran was seen in May 1994 with an upset stomach, vomiting, and difficulty sleeping. He was diagnosed with gastroenteritis. A February 1997 Report of Medical Examination shows that clinical evaluations of the nose, mouth, and throat were normal. The February 1997 Report of Medical History shows that the Veteran reported he was in good physical health, and he specifically denied ever having or having then frequent trouble sleeping. These facts tend to show that the Veteran did not have sleep apnea during service. Thus, the Board finds the preponderance of the evidence is against a finding that the Veteran had obstructive sleep apnea during service, and the Veteran does not meet the second element of a service-connection claim on a direct basis. As to evidence a nexus between the current disability and service or a service-connected disability, the Board finds the preponderance of the evidence is against such a nexus. For example, the Veteran was first diagnosed with sleep apnea in May 2017. When seen in April 2017 reporting a sleep disturbance, he told the examiner he did not know if he snored or had apneic episodes at night. This is more than 20 years following service discharge and is evidence that weighs against a finding that sleep apnea had its onset in service. Furthermore, VA treatment records from March 1998 to June 1998 and May 1999 show that the Veteran reported that his sleep was good. The Veteran reported in November 1998 that he had some difficulty with sleep but then at his December 1998 VA psychiatric visit, the Veteran reported that he was doing well with no complaints. Additionally, VA obtained a medical opinion in February 2018. The examiner documented that she had reviewed the file and noted the May 1994 documentation of difficulty sleeping during service with a diagnosis of gastroenteritis and that the Veteran was not diagnosed with sleep apnea until 20 years after service. She concluded that in the absence of ongoing issues related to sleep, a nexus was not established, and it was less likely than not related to service. The Board finds this opinion probative, as the examiner reviewed the record, recognized that the Veteran had an in-service complaint of difficulty sleeping, the fact that he was not diagnosed with sleep apnea until 20 years after service discharge, and there was a lack of ongoing issues related to sleep after service. These are the same facts that the Board believes are accurate. This is evidence against a nexus to service. The Veteran was afforded a VA examination in December 2018. The examiner concluded that the Veteran’s obstructive sleep apnea was less likely than not proximately due to or the result of a traumatic brain injury or generalized anxiety disorder. The examiner noted that there was no etiological association between obstructive sleep apnea pathology and the psychiatric disorder per a medical literature review. Here, the December 2018 examiner was being asked about secondary service connection if service connection for traumatic brain injury and/or a psychiatric disorder were granted. These two claims are addressed in a separate decision, and, as explained in the separate decision, the Board finds that service connection for traumatic brain injury and a psychiatric disorder are not warranted. Thus, a secondary claim based on these two disabilities has no merit. The Veteran is competent to state that he experienced trouble sleeping at night while in service; however, he is not competent to directly link sleep apnea to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s opinion is nonprobative evidence. Thus, at the present time, there is no competent evidence of a nexus between the post-service diagnosis of sleep apnea and service to weigh against the negative February 2018 VA opinion. Hence, while the evidence shows that the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence is against a finding that his current disability had its onset in service or is otherwise related to service. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection for obstructive sleep apnea is denied. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for PTSD As noted on the title page, a decision addressing the claim for service connection for a psychiatric disorder, other than PTSD, will be issued separately, as such issue falls under the Appeals Modernization Act. Thus, this decision is limited to considering service connection for PTSD only. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. The Veteran believes he has PTSD, which he believes is related to events that occurred during service. During his Board hearing, the Veteran testified that on New Year’s Eve, he was in Paris, France, at a military-sanctioned event. Early in the morning (January 1st), he was walking through an intersection and he blacked out. He stated that he walked through a group of individuals, and they slammed his head with a bottle and cracked his head open. He said he was unconscious for approximately 20 minutes. He testified his German friend helped fight off the individuals until the triage unit could help. He then walked around for hours afterwards before heading back to Germany, where he was stationed. He said by the time he got back to Germany, his head was crushing and saw a doctor. He was stitched up by the doctor. He testified that the effects of the TBI were not immediate, but months afterward, he noticed he was not sleeping well. He also testified that the TBI changed his whole ethos on how he was living. He stated he started to use drugs, and everything began to unravel for him. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD. The reasons follow. As to evidence of a current disability, the preponderance of the evidence is against a showing that the Veteran has a diagnosis of PTSD under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which is required for entitlement to service connection for PTSD. For example, the Veteran was afforded a VA examination in February 2018, where the examiner found that the Veteran did not have PTSD, and, instead, diagnosed the Veteran with a panic disorder and stimulant abuse by history. This is evidence against the Veteran having a diagnosis of PTSD. The lack of evidence of the Veteran having PTSD is consistent with the VA treatment records. For example, PTSD screens performed in September 1999, February 2000, August 2001, May 2007, March 2012, and May 2017 were all negative. When seen in November 2016, the examiner documented that the Veteran denied PTSD symptoms during the interview. This is further evidence against the Veteran having a diagnosis of PTSD. Additionally, the Veteran was seen in October 2018 by VA psychiatrist, F.F. She noted that the Veteran’s diagnoses are generalized anxiety disorder with panic attacks; attention deficit disorder; stimulant (cocaine) use disorder, in sustained full remission, alcohol use disorder in sustained full remission, and rule out mood disorder on bipolar spectrum. This is the Veteran’s treating psychiatrist, who would be in the best position to determine the Veteran’s proper psychiatric diagnosis/diagnoses. This is further evidence against the Veteran having a diagnosis of PTSD. Therefore, the Board finds there is no competent evidence from a medical professional that the Veteran has PTSD that falls under DSM-5. Thus, without a diagnosis of PTSD from a medical professional, service connection for PTSD is not warranted. The Veteran asserts that he has PTSD, however, lay assertions do not constitute a competent clinical diagnosis of PTSD, as medical expertise is required. The Veteran has not offered other competent evidence in support of his assertion that he believes he has PTSD. In the absence of a qualifying current diagnosis for PTSD, which conforms to DSM-5, service connection for PTSD cannot be established. See 38 C.F.R. §§ 3.304(f), 4.125(a). For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.