Citation Nr: 21061313 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 16-00 452 DATE: October 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for a disability manifested by malaise and fatigue is remanded. Entitlement to service connection for coronary artery disease, also claimed as a heart condition, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected traumatic brain injury (TBI), is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had an acquired psychiatric disorder at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1961 to December 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision and August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. For the issue of service connection for sleep apnea, the Board denied this claim in August 2020, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed to vacate the May 2021 decision and remand the matter to the Board. This issue will be addressed in the remand section of this decision. Concerning the issue of service connection for malaise and fatigue, coronary artery disease, hypertension, and GERD, the Board remanded these issues in November 2020 for additional development. As explained below, further development is necessary prior to final adjudication. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record. Accordingly, the issue is expanded as indicated on the title page. 1. Service Connection for an Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder, to include anxiety, depression, and PTSD, that was caused by his active duty service. See August 2017 Notice of Disagreement. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis for an acquired psychiatric disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records show no complaints, diagnosis, or treatment related to an acquired psychiatric disorder. In a November 2010 private treatment note, a psychiatric evaluation of the Veteran showed positive screening for depression. In an October 2011 VA treatment note, PTSD and depression screening test were negative. An October 2015 private treatment note listed an anxiety disorder in the differential diagnosis section of a report. The Veteran had reported with heart palpitations and his history of myocardial infarction, hypertension, high cholesterol, GERD, and palpitations was noted. He reported the palpitations lasted for 10-15 minutes with soreness and sweating, which resolved on its own. The treating physician noted that anxiety was a risk factor. During the review of systems, his psychiatric presentation was "appropriate." Along with anxiety disorder, multiple other potential conditions were listed: atrial fibrillation, atrial flutter, bradycardia, cardiac arrythmia, chest pain, dizziness, electrolyte imbalance, hypertension, junctional tachycardia, multifocal atrial tachycardia, premature atrial contractions, palpitations, premature ventricular contractions, sick snus syndrome, sinus tachycardia, and supraventricular tachycardia. A differential diagnosis is the determination of which of one or two or more diseases or conditions a patient is suffering, by systematically comparing and contrasting their clinical findings. Dorland's Illustrated Medical Dictionary, 507 (32nd ed. 2012). Less probative weight is assigned to the listing of anxiety disorder in a differential diagnosis. Additionally, at the appointment, the Veteran was admitted for critical hypomagnesemia which was treated with intravenous magnesium, and a stress test was recommended. The diagnosis was heart palpitations and hypomagnesemia. In the November 2010, November 2013, June 2014, February 2015, June 2015, July 2017, August 2017, April 2018, July 2018, January 2019, and October 2019 private treatment notes, psychiatric review of the Veteran revealed negative findings for depression and suicidal ideas. The Veteran presented for a VA examination in January 2021, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner explained that there was no evidence either in the medical records or from the Veteran's statements that he is experiencing significant psychological conditions. The examiner noted that the Veteran does not meet the diagnostic criteria for PTSD and did not have a mental disorder that confirmed with DSM-5 criteria. The examiner also noted that the Veteran has endorsed PTSD related symptoms, but "denies experiencing significant disturbance related to these symptoms or having other psychiatric problems that he is concerned about." He denied that they have any noticeable impact on his life. The Veteran further stated that "his attorney submitted [the] application for service connection, but he does not believe he is eligible." The examiner noted that the reported symptoms of memory impairment is related to his TBI. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record, to include the VA and private treatment records. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. Upon review of the evidence of record, the Board finds that the criteria for service connection for an acquired psychiatric disorder have not been met because the evidence is against a finding that the Veteran has a psychiatric disability at any point during the appeal period. After considering the Veteran's reports and the record, the examiner conducted an evaluation of the Veteran and found that the Veteran does not have a psychiatric diagnosis. The Board acknowledges the private treatment screening that was positive for depression in November 2010 and anxiety disorder in October 2015. The notation of anxiety disorder in a differential diagnosis list is afforded less probative weight than the findings of the VA examiner. As noted above, his differential diagnosis was a list of possible conditions that could have been causing his heart palpitations and sweating. The diagnosis was later determined to be heart palpitations and hypomagnesemia. The VA examiner specifically found that no psychiatric disorder was present and explained why. The VA examiner's opinion is more probative than the November 2010 depression screen and the October 2015 differential diagnosis. The Board has considered the Veteran's statements, to include his assertions that he may have had a psychiatric disorder. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., feeling depressed on anxious; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a DSM-5 diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. Notably, while the Veteran may have previously reported these symptoms, the overall evidence of record has been negative for a psychiatric condition to include during the period on appeal. The Board has also taken into consideration the Veteran's own report that "he does not believe he is eligible" for service connection for a psychiatric disorder. The Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. The plain language of 38 C.F.R. § 4.130 requires a DSM-5 diagnosis to compensate a psychiatric disability, and the most reasonable interpretation of 38 C.F.R. § 4.125(a) requires the same. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). The preponderance of the evidence supports a finding that he does not have a DSM-5 diagnosis of a psychiatric disorder. Therefore, the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disorder is denied. REASONS FOR REMAND 1. Service Connection for Sleep Apnea is Remanded. The Veteran has asserted that his sleep apnea is due to his active duty service, to include as secondary to his service-connected TBI. See January 2016 Substantive Appeal, June 2019 Hearing Tr. at 7. In the May 2021 JMR, the parties noted that the July 2019 VA examiner did not provide a specific explanation as to why the Veteran's sleep apnea was not aggravated by his service-connected TBI. Consistent with the JMR, the Board finds than an addendum opinion should be obtained from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not caused or aggravated by his service-connected TBI. 2. Service Connection for Malaise and Fatigue is Remanded. The Veteran asserted that his malaise and fatigue was caused by his active duty service, to include as secondary to his service-connected TBI. See August 2017 Notice of Disagreement, August 2020 Third Party Correspondence. A July 2018 and January 2019 private treatment note showed positive screening for malaise and fatigue. The Board cannot make a fully-informed decision on the issue of service connection for malaise and fatigue because no VA examination has assessed the claim. Thus, a remand is warranted. 3. Service Connection for Coronary Artery Disease is Remanded. 4. Service Connection for Hypertension is Remanded. 5. Service Connection for GERD is Remanded. The Veteran contends that his service-connected cervical spine, bilateral upper extremity radiculopathy, and TBI impaired his ability to exercise which aggravated his obesity resulting in his coronary artery disease, hypertension, and GERD. See August 2020 Third Party Correspondence, July 2021 Substantive Brief. In the November 2020 remand, the Board instructed the AOJ to obtain a medical opinion regarding whether the Veteran's obesity has served as an intermediary step between his service-connected disabilities and his claimed coronary artery disease, hypertension, and GERD. A February 2021 VA medical opinion was obtained where the examiner noted that obesity was a risk factor for coronary artery disease, hypertension, and GERD but not the sole cause of the conditions. The examiner went on to explain that there was no medical evidence that links obesity as the cause of the Veteran's service-connected conditions. However, this initial opinion is counter to the theory of entitlement in question. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service injury or disease for service connection purposes, obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. The examiner further opined that upon reviewing the service treatment records, personal statements, and peer reviewed statements, there was no evidence that support the association of the Veteran's service connected disabilities as the cause of the Veteran's obesity. However, the latter opinion is conclusory with no supportive rationale and does not take into consideration the Veteran's reports. In that regard, the examiner does not address the Veteran's report that his service connected disabilities impacted his ability to exercise that led to his obesity which ultimately resulted in his coronary artery disease, hypertension, and GERD. Given the above, a remand is warranted to obtain an addendum VA medical opinion that can sufficiently address the Veteran's claim. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current sleep apnea onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether the current sleep apnea disability is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected TBI. In offering the opinion, the examiner is asked to consider medical articles submitted by the Veteran on July 2019 regarding the relationship between sleep apnea and TBI. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of malaise and fatigue onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current disability of malaise and fatigue is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected TBI. In offering the opinion, the examiner is asked to consider the medical articles submitted by the Veteran on August 2020 regarding the relationship between fatigue and TBI. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 4. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not that: (a.) The Veteran's service-connected disabilities caused him to become obese. (b.) If the answer to (a) is "no," does/did the Veteran's service-connected disabilities aggravate his obesity? (c.) If the Veteran is obese and the answer to either (a) and (b) is "yes," was the obesity a substantial factor in causing his coronary artery disease, hypertension, and GERD? (d.) Would the coronary artery disease, hypertension, and GERD not have occurred but for the obesity caused (or aggravated) by his service connected disabilities? In offering the opinion, the examiner is asked to consider the medical articles submitted by the Veteran on August 2020 regarding the relationship between obesity and coronary artery disease, hypertension, and GERD. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 5. Readjudicate the claims. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.