Citation Nr: 21061371 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 16-43 294 DATE: October 1, 2021 ORDER Service connection for an acquired psychiatric disorder, to include depression, is denied. Service connection for obstructive sleep apnea (OSA) is denied. Service connection for blocked carotid arteries, including as due to OSA, is denied. REMANDED In addition, the following claims for service connection are remanded to the agency of original jurisdiction (AOJ) for additional development: a right knee disability; a left knee disability, to include as due to a right knee disability. FINDINGS OF FACT 1. The probative evidence of record does not demonstrate that the Veteran has a current acquired psychiatric disability, to include depression. 2. The probative evidence of record does not demonstrate that the Veteran's OSA is etiologically related to service. 3. The probative evidence of record does not demonstrate that the Veteran's blocked carotid arteries are etiologically related to service or secondary to his OSA. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include depression, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for blocked carotid arteries are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to May 1980. The Veteran's claims were previously before the Board of Veterans Appeals (Board) in August 2019 wherein they were remanded for additional development. In part, the Board requested that the Veteran identify any treatment providers and submit releases for said providers. In response, the Veteran identified that he received treatment from a VA medical center. These records were obtained. The only other medical records specifically identified by the Veteran were submitted (in-part) by him and are associated with the file. Service Connection The Veteran contends that his depression, OSA, and blocked arteries are related to his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). To the extent that the Veteran contends, or the Board inferred, his claims are chronic and based on continuity of symptomology, the only claim decided herein that would be considered a chronic disease is arteriosclerosis (blocked arteries). 38 C.F.R. § 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that the Veteran's representative asserts the examinations of record were invalid because the examiner relied on a lack of medical treatment during service and/or ignored the Veteran's description of his symptoms. In this regard, the Board notes that the absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is insufficient rationale for a nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). However, the examiner's opinions did not rely solely on the lack of records and the Board does not find the examinations to be inadequate for this reason alone. 1. Service connection for depression The Veteran contends that he has an acquired psychiatric disability, to include depression, that is etiologically related to service. In support, he points to being depressed during service because he was away from his family, drinking alcohol after exiting service, and that his depression and poor ability to communicate continued since service. See VBMS, document labeled Correspondence, receipt date October 6, 2016. While the Veteran's service treatment records (STRs) document alcohol counseling, the Board does not find that the Veteran has a current psychiatric diagnosis. See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (In the absence of proof of a present disability, there is no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period). The Veteran applied for service connection for depression in April 2015. In January 2012, the Veteran reported some stress dealing with issues with his daughters, but he had moved on from feeling depressed over it. In March 2015, the Veteran reported "some stress and depression" related to his daughters, but he had no thoughts of harming himself, he declined a referral to behavioral health, and a depression screen was suggestive of mild depression over the previous two weeks. A May 2016 record listed depression as an active diagnosis, but his depression screen was negative for depression. The November 2020 VA examiner interviewed the Veteran but did not find a diagnosis of depression. The Board has considered whether the Veteran's description of symptomology alone would demonstrate a functional impact. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (where the evidence shows that symptoms reach the level of a functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis). However, VA requires a diagnosis that conforms to the DSM-5 to compensate for a psychiatric disability, therefore constraining the application of Saunders in the context of claims of service connection for psychiatric disabilities. See Martinez-Bodon v. Wilkie, Aug 11, 2020, 32 Vet. App. 393 (2020). Given the above, the Board finds the Veteran does not have an acquired psychiatric disability, to include depression. While the Veteran may feel depressed from time to time, he does not have the requisite medical expertise to render a diagnosis of depression. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that rendering a diagnosis of depression requires medical expertise and for that reason gives great probative weight to the opinion of the November VA examiner. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the weight of the evidence is against the claim for service connection for an acquired psychiatric disability, to include depression. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for OSA The Veteran contends that after nerve gas exercises, his bunk mates told him he snored. Further, the Veteran's wife stated that since she met the Veteran in 1988, he snored and would gasp for air during sleep. See VBMS, two documents labeled Correspondence, receipt date October 6, 2016. The Veteran has a current diagnosis of OSA. Further, the Veteran contends that he developed snoring during service. Thus, the first two elements of service connection are met. Shedden, supra. Turning to whether the Veteran's OSA is etiologically related to service, the Veteran attended a VA examination in December 2019. The clinician reviewed the medical evidence and the various lay statements of record. The examiner noted that age, alcohol use, excessive weight, and obesity are risk factors for OSA. At the Veteran's examination, he reported that he had OSA for about 10 years, but the original sleep study was not present. The Veteran's weight in 2003 was 225.4 and in 2019 it was 260, which the examiner found to be overweight. During service, the Veteran weighed 185 pounds. Further, the clinician noted the Veteran's history of drinking alcohol. For all of those considerations, the clinician found the Veteran's OSA to be less likely than not related to service. The Board gives the opinion great probative weight because it reviews the evidence and provides support for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran's lay opinion that his OSA is related to service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the Veteran is competent to report that he snored during service. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds the diagnosis and etiology of OSA to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a diagnosis or connection between the two. Consequently, the Board gives more probative weight to the medical evidence discussed above. The Board has considered the Veteran's history of snoring and his wife's statements that he has snored and had apneatic episodes since she met him. The Veteran has asserted that he drank alcohol during service and until about 1990. The VA examiner explained the impact of alcohol on the Veteran's post-pharynx and tongue. Regarding the Veteran's wife's statements, she met the Veteran eight years after discharge and during the period of the Veteran's drinking. As she did not know the Veteran during service, her statement is given little weight. Thus, the weight of the evidence is against the claim for service connection for OSA. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for blocked carotid arteries The Veteran contends that he has blocked arteries and that these are related to OSA. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. However, the Veteran is not service-connected for OSA; thus, his claim under this theory fails. While the Veteran has a diagnosis of carotid artery narrowing, the December 2019 VA examiner did not relate it to service. The clinician explained that such narrowing is caused by a build up of cholesterol in the vessels. His testing came more than 30 years after service and no records indicate that he suffered from any symptomology related to narrowing arteries during or continuing since service. The Board gives the opinion great probative weight because it is based on a review of the evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran's lay opinion that his blocked arteries are related to service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the Veteran is competent to report that currently has blocked arteries. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds the etiology of such a disability to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to report his diagnosis, he cannot, as a layperson, provide competent medical evidence establishing the etiology of his diagnosis or connection between the two. Consequently, the Board gives more probative weight to the medical evidence discussed above. Thus, the weight of the evidence is against the claim for service connection for blocked arteries. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 4. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he injured his right knee during basic training, but that he did not seek medical treatment for his injury. See VBMS, document labeled Correspondence, receipt date October 6, 2016, page 1 of 3. However, he continued to have pain in his right knee since service. The Veteran's STRs are silent as to an injury or complaints regarding his right knee. The Veteran was afforded a VA examination in connection with his claim. The December 2019 examiner gave the opinion that the imaging of the Veteran's knees demonstrated normal wear and tear over the years and aging (into the upper 50's) and was not related to injury during service. In support, the examiner noted no records of injury or treatment during service and that the Veteran's job was mostly sedentary. However, in reviewing the history reported by the Veteran, he did report an injury during basic training. However, the Veteran also contends that after many years of pain, he sought treatment for his right knee in 1997. The Veteran submitted a record of a right knee procedure he had performed in June 1997 that shows his postoperative diagnosis as "traumatic chondromalacia of the medial compartment of the right knee, an old anterior cruciate ligament injury of the right knee, and patellar chondromalacia." See VBMS, document labeled Medical Treatment RecordNon-Government Facility, receipt date November 14, 2016. Further, the Veteran submitted 2016 treatment records from a private clinician that provides the following diagnosis: "almost complete loss of his medial compartment cartilage space and significant patellofemoral arthritis, right greater than left." See VBMS, document labeled Medical Treatment RecordNon-Government Facility, receipt date October 6, 2016, page 12 of 28. Given the above, the Board finds the examiner's opinion to be inadequate. First, the clinician's opinion states that the Veteran reported no history of an injury, but at the examination he reported he injured his knee during basic training. Second, the clinician did not address the records of the procedures in 1997 and 2016. Finally, as the clinician found that the Veteran's right knee was related to normal wear and tear and aging, the clinician did not address the diagnoses from 1997 nor the severe degeneration noted in 2016. For these reasons, a remand is warranted. 5. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. The Veteran contends that he developed a disability in his left knee as a result of his right knee. As the Veteran's right knee is being remanded above, the left knee must be remanded as the claim is intertwined with his right. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment provider, to include Shawnee Mission Medical Center. Make two requests for the authorized records from the provider, unless it is clear after the first request that a second request would be futile. 2. Allow the Veteran to submit additional information related to the workplace injury he suffered in 1997. 3. After allowing the above evidence to be associated with the claims file, obtain an addendum opinion from a qualified clinician to determine the nature and etiology of the Veteran's knee disabilities. The claims file should be made available to the examiner and reviewed. All necessary tests and studies should be accomplished. The examiner should: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right knee condition (during the pendency of the claim (since April 2015) had its onset in service or within one year following separation from service; or was causally related to service; and (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left knee condition diagnosed had its onset in service or within one year following separation from service; or was causally related to service; or was caused or aggravated (worsened beyond its natural progression) by any right knee condition diagnosed. In answering the questions above, the clinician should review the medical record, but specifically comment on the following records: The Veteran's June 1997 right knee procedure, VBMS, document labeled Medical Treatment RecordNon-Government Facility, receipt date November 14, 2016. The Veteran's August 2016 private records noting the diagnoses of his knees. VBMS, document labeled Medical Treatment RecordNon-Government Facility, receipt date October 6, 2016, page 12 of 28. The medical history reported in the December 2019 examination, to include his report of a right knee injury during service and a subsequent knee injury in 1997. If the clinician determines that the Veteran's knees are a result of aging and/or wear and tear, the clinician should specifically explain why, noting the comparative degeneration of each knee. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.