Citation Nr: 21000451 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-42 542 DATE: January 5, 2021 ORDER The application to reopen the claim of service connection for psychiatric disorder, is granted. The application to reopen the claim of entitlement to service connection for obstructive sleep apnea (OSA) is granted. Service connection for the psychiatric disorder, anxiety disorder, is granted. Service connection for OSA is denied. FINDINGS OF FACT 1. In an unappealed April 2014 rating decision, the RO denied service connection for psychiatric disorder to include depression and bipolar disorder based on a finding of no currently diagnosed disability. 2. Evidence received since the April 2014 rating decision is relevant and probative as to the claim of service connection for psychiatric disorder, and not previously considered as to this claim. 3. In an unappealed February 2012 rating decision, the RO denied service connection for OSA because there was no competent evidence tending to show sleep apnea in service. 4. Evidence received since the February 2012 rating decision is relevant and probative as to the claim of service connection for OSA, and not previously considered as to this claim. 5. The Veteran’s only acquired psychiatric disorder, variously diagnosed throughout the appeal but most recently defined as anxiety disorder, is related by competent medical evidence to incidents that occurred during his wartime service. 6. OSA was not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for psychiatric disorder; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the claim of service connection for OSA, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The psychiatric disorder, anxiety disorder, was incurred in service. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1992 to January 2001. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2020. The VLJ identified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means 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, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. New and material evidence has been presented since the RO finally denied both claims. First, we note that there is now diagnosed psychiatric disability, whereas the claim was initially denied in April 2014 based on a finding of no current disability. The RO noted in 2014 that it had considered VA treatment records available at that time, in addition to the service treatment records (STRs). The conclusion was that there was no clinical diagnosis and thus no current disability. There is now an August 2020 non-VA psychologist’s diagnosis of anxiety disorder. See Dr. Monrow’s report received in September 2020. There are also VA treatment records showing various diagnoses. Second, the claim for OSA was denied because there was no competent evidence tending to support the claim of sleep apnea in service. Since that time, the Veteran has submitted multiple buddy statements to include that of comrades who witnessed his excessive snoring at Fort Hood and Fort Belvoir. See Three buddy statements submitted in June 2015. 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. This newly added and not previously considered evidence satisfies the low threshold as to the claims. The claims are reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection is also warranted for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). 1. Service connection for the psychiatric disorder, anxiety disorder, is granted. The Veteran contends that he has an acquired psychiatric disorder as result of incidents that occurred during his period of service. He testified, “My depression initiated from the death of my child. When I was at Fort Belvoir, it escalated from the lack of the ability to be given a chance or an opportunity, and also to the fact that I never received counseling --I never received any assistance as far as trying to, I guess, to deal with the depression that I had slipped into. My --my work ethic had decreased, my motivation decreased…” This sad event occurred in October 1993. His statements in reference to his psychiatric disorder are replete with reported details of the tragedy and his feelings in the aftermath. He essentially testified that he had problems getting along with people in his career after that, people reacted badly to him and he did not perform well. He felt he was harassed and/or passed over, got frustrated and grew depressed. Service treatment records show no findings, treatment, or diagnoses of acquired psychiatric disorder. At the time of his December 2000 separation examination, he did check yes as to ever having had depression, but his psychiatric clinical evaluation was negative, and he was considered qualified for separation. Cyclothymic Disorder and depression are noted in VA treatment records dating from 2009, with several negative depressive screens prior to that time. The Veteran was afforded a VA examination in July 2016. The examiner opined that the Veteran did not have a depressive disorder that is as likely as not incurred in or caused by the event in which the child born to him and his first wife died during the time he was serving in the military. The examiner found that the diagnosis most consistent with Veteran's description of functioning and mood patterns is Cyclothymic Disorder. It was noted that the Veteran identified numerous periods of hypomanic symptoms that did not meet criteria for full hypomanic episodes, and he described numerous periods with depressive symptoms that did not indicate criteria for major depression had been met. This condition did not appear substantially influenced by, or caused by, substance use or any medical condition (including sleep apnea). In the opinion of this examiner, this condition is not caused by or a result of the event of the death of the child born to him and his first wife. Rationale is based upon the following information. A detailed explanation was provided. Ultimately, the examiner felt that the Veteran's description of behavior, and especially sexual behavior, in the months after the claimed event is more consistent with hypomanic symptoms of Cyclothymia. Finally, they felt the Veteran's records contain statements suggesting patterns of impulsivity and mood dysregulation prior to his military service, further indicating an unlikelihood that a particular event in the military is the cause for his mood patterns during and after military service. A non-VA clinical psychologist, Perris J. Monrow, provided an opposing opinion in August 2020. The August 2020 Mental Disorders (Other than PTSD and Eating Disorders) Disability Questionnaire (DBQ) contains Dr. Monrow’s opinion that the current psychiatric disorder, anxiety disorder, is due to the constant harassment he received in the Army after his son died in 1993 and from nowhere or nothing else. Dr. Monrow recorded a detailed history that is consistent with the history reflected in the 2016 VA examination as well as the Veteran’s recitation of events at the hearing. Dr. Monrow indicated that his evidence review included the Veteran’s personnel testimony, all service and medical records the Veteran had and the DD 214. We note that Dr. Monrow’s report indicates he is ‘certified and qualified to do Veteran Mental Disorder Examinations through LHI Logistics Health Incorporated’. Nothing in the service record is inconsistent with the described incidents in service. Ultimately, these two trained psychologists came to opposite conclusions, each accepting the facts as reported. We cannot find any appreciable reason to discount Dr. Monrow’s report. The Board finds the evidence as to nexus is in equipoise. We will resolve the matter in the Veteran’s favor. The diagnosed anxiety disorder is related to service by Dr. Monrow’s opinion. The claim is granted as to anxiety disorder, the only psychiatric disorder of record. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 3.303. The characterization of the disability as anxiety disorder herein causes no prejudice to the Veteran in light of the grant of the full benefit and the fact that it is the only psychiatric disorder for which a nexus with service has been established. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). In fact, it benefits the Veteran. The claim is thus being allowed because there is competent evidence of record demonstrating that this disorder, anxiety disorder, is due to service. 2. Service connection for OSA is denied. The Veteran testified that sleep apnea symptoms first manifested in service. He has submitted lay statements and buddy statements dated throughout the course of this appeal supporting the observance of symptoms such as loud snoring and stopped breathing since service. He stated he did not know what OSA was until he was diagnosed with the condition. Sleep apnea was noted from early 2010, with treatment via CPAP noted from June 2010 and March 2011 OSA diagnosis with sleep study. There is current disability. See VA treatment records dating from 2002 noting sleep apnea complaints and findings from January 2010. The issue for the Board thus is whether the Veteran’s sleep apnea began during service or is at least as likely as not related to service. For the reasons that follow, we find that the preponderance of the evidence is against finding that the OSA is related to service. Service treatment records show no findings, treatment, or diagnoses OSA. At the time of his December 2000 separation examination, he did check ‘yes’ as to ever having had frequent trouble sleeping, but his clinical evaluation was wholly negative, and he was considered qualified for separation. As to his report of the sleep trouble, he clarified that back pains caused problems sleeping. Sleep apnea is noted in VA treatment records dating from January 2010 as rule out sleep apnea, with a sleep apnea and CPAP noted in June 2010 and diagnosis of OSA noted from October 2010. Here, we find that OSA was not manifest in service. The STRs only reflect the reported sleep problems related to back pain and are not of the nature that would suggest he was describing any type of excessive snoring or apnea-type sleep issue. Also, the July 2016 VA examiner found it less likely than not that OSA was present while in service. OSA is not otherwise related to service. 38 C.F.R. §§ 3.303 (d). There is no medical opinion indicating that OSA, first manifested decades following service, is related to service. Rather, VA examination in July 2016 contains a negative opinion. The physician opined that OSA was less likely than not (less than 50% probability) incurred in or caused by service. The rationale was as follows: The Supporting statements are noted. However, there are no STR's covering a 9 year career concerning any sleep related issues. No complaint of fatigue, tiredness, sleepiness, and no reports of falling asleep on duty. When prompted, he did state that on occasion he would fall asleep at the computer. He reports one incident when he fell asleep while driving home and went off the road and up an embankment. There was no report in his STR. While he may have been snoring loudly while in service, the absence of the above makes is less likely than not to have been present while in service. The effect of 10 years aging and 40 pounds weight gain following service are more likely than not, factors that were important in the development of the OSA. The VA opinion is detailed and well-supported. Because it is informed by knowledge of the Veteran’s health as evidenced in the report, is not inconsistent with the documented record, and cites to critical facts in the record, the Board finds the VA opinion to be credible and probative of the issue of nexus. The Board finds the conclusions as to etiology to be sound as to the unique facts of this case. The   examiner’s conclusions are uncontroverted by any other medical opinion evidence of record, and they are unfortunately not favorable to the claim. The Board accords it substantial probative weight as to the conclusion that sleep apnea is not related to service. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert’s opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The opinion is adopted. While the Veteran testified and submitted buddy statements that OSA is related to his service and was noted in service by people known to him, neither he nor any other lay person is competent to provide a nexus opinion in this case. As noted by the VA examiner, there is a gap of many years between service and initial findings of the condition. This issue of nexus is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows that the disorder first manifested years after service and is unrelated to service. The weight of the evidence is against finding that OSA is otherwise related to service. The multi-year gap between discharge from active duty service in 2001 and evidence of OSA in 2010 is viewed as a factor weighing against this claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The weight of the evidence is against concluding that any such disease was incurred in service. 38 C.F.R. § 3.303 (d). The preponderance of the evidence is against finding that a nexus exists between the Veteran’s OSA and service. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).   Parenthetically, we also note that the medical literature submitted by the Veteran suggests that sleep apnea may cause depression, not that OSA is caused by depression. Thus, it is not probative as to this claim. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.