Citation Nr: 21004149 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 18-09 971 DATE: January 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The most probative evidence of record reveals that the Veteran’s psychiatric condition, diagnosed as Generalized Anxiety Disorder (GAD), is etiologically related to active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to October 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in November 2019. The transcript is of record. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).. 1. Service connection for an acquired psychiatric disability Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has a current diagnosis of GAD, confirmed in VA treatment records, which indicate a range of psychiatric symptoms including depression and anxiety. Treatment notes from a November 2016 counseling session with a VA provider show that the provider explicitly linked the Veteran’s current symptoms to his active duty service experiences. This finding mirrors the Veteran’s consistent and credible lay statements regarding in-service onset of his mental symptoms, and continuity of symptomatology since separation. Thus, the Board finds the November 2016 provider’s assessment to constitute the most probative evidence of record with respect to the presence and etiology of the Veteran’s psychiatric disability, and on that basis, finds that service connection for an acquired psychiatric disability, diagnosed as GAD, is warranted. The appeal is granted. REASONS FOR REMAND 1. Service connection for sleep apnea. The Board finds additional development necessary before this matter can be finally adjudicated. The Veteran carries a current diagnosis of obstructive sleep apnea, confirmed in December 2017 private treatment records. However, he has not yet been afforded a VA examination to explore the etiology of the condition, which he attributes to active duty service, to include toxic exposure while serving in the Republic of Vietnam. On remand, a VA examination must be conducted and an expert medical opinion as to etiology obtained. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the record with any as yet unsecured VA and/or private medical records relevant to the Veteran’s claim. 2. Then, schedule the Veteran for a VA examination with to explore the etiology of his diagnosed sleep disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.    Please identify all current sleep-related disabilities. For each identified disability, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service, to include as secondary to in-service exposure to tactical herbicides. In addressing the above opinion, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale 3. Thereafter, the RO should readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.