Citation Nr: 21063834 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-35 243 DATE: October 18, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for obstructive sleep apnea (OSA), claimed as secondary to an acquired psychiatric disorder, is denied. Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that an acquired psychiatric disorder, to include PTSD, manifested during active service or within a year of separation from service, is otherwise the result of a disease or injury during active service, or secondary to a service-connected disability. 2. The preponderance of the evidence is against finding that OSA manifested during active service, is otherwise the result of a disease or injury during active service, or secondary to a service-connected disability 3. The Veteran is service-connected for tinnitus, considered 10 percent disabling; this condition has not been shown to preclude substantially gainful employment; and referral for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310. 2. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to June 1992 in the United States Navy, with additional service in the Naval Reserve through June 1999. This appeal comes to the Board of Veterans' Appeals (Board) from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions dated in June 2013 and August 2017. The Board remanded the issues on appeal in March 2019. The Board finds there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Service Connection Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. For veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases, such as psychosis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307 (a), 3.309(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include PTSD. In a September 2011 statement in support of claim he alleged that he has a generalized anxiety disorder. In an August 2012 stressor statement he testified that he was diagnosed with anxiety disorder 10 years prior. He alleged that he was constantly bullied during service and gave names of the people who bullied him. He described having spent just under 40 months of sea duty on a ship with only one medical doctor who was not a psychologist or psychiatrist. He stated that he was harassed on a daily basis while aboard the Navy ship, with the harassment including verbal abuse, taunts and attempts to start fights. The harassment was said to have taken place in front of ranking officers. He switched work areas to try to avoid the harassers but was unsuccessful. He contends that he has PTSD as a result of this harassment. This belief was also expressed in an August 2013 statement in support of claim. The question for the Board is whether the Veteran has a current disability that was incurred in or aggravated by service or absent that, was caused or aggravated beyond natural progression by service-connected disability. Service treatment records do not show any complaints of or treatment for any psychiatric issues, and periodic examinations and dental questionnaires were repeatedly normal with the report of medical history negative for psychiatric complaints including on entrance in August 1996 and separation in May 2012. The Veteran's service personnel records are silent for any evidence of disciplinarian or behavior issues suggestive of a possible mental disorder. Nor was evidence of bullying, disciplinary issues or problems with other military personnel shown in the military personnel records. The only infraction shown in the military personnel records was nonjudicial punishment possession of a fake ID. Otherwise the personnel records showed that he had consistently had favorable evaluation reports, performed his duties in a satisfactory fashion and was regarded as promotable. Post service records show that in May 2002 the Veteran was seen to discuss anxiety disorder and was prescribed Buspar. He admitted to double checking himself a lot but did not demonstrate obvious obsessive-compulsive behavior. He was assessed with anxiety disorder. Records from July 2002, August 2002, September 2002, and October 2002 showed treatment for anxiety with medication including Wellbutrin which was not working anymore according to the records in September and October 2002. In March 2003, the Veteran was seen by VA mental health professionals for a first visit for anxiety symptoms. He gave a history of treatment by a family practitioner the past 8-9 months for anxiety with general care, currently on Wellbutrin. In January 2002, at work he injured his shoulder and a week or two later, had a panic attack, with symptoms of heart racing, and he went to the emergency room. Following that episode, he has been worried about having more panic attacks and he reported his worrying increased. He also reported feeling depressed and was having difficulty with sleeping and with concentration. He also had thoughts of death and dying. He reported that despite treatment with various medications, including Paxil, Buspar, and other medications, the anxiety increased. He reported a positive response to Wellbutrin. He reported that one of his doctors was concerned that he might have a bipolar disorder. He described good days, as lasting for about 3 -4 weeks, where he felt more energized, was more happy and not anxious. There were no reports of any manic symptoms and no delusions or hallucinations. Historically he reported that when he was 17 yrs old, he felt anxious after he hurt his arm while playing golf. He gave a history of a normal childhood, except for his elder brother who was physically abusive towards him. He graduated from high school and served in the Navy from 1988-1992. This history was absent for any reference to any incidents of bullying or other incidents in the service. His post service history was noted to include working as a machine operator in several places until he quit in 2002. He never married or had children and lived with his mother for the past 7 years. He had no history of substance abuse or legal problems. Following mental status examination he was diagnosed with mood disorder NOS and anxiety disorder NOS. Thereafter the records show no treatment for psychiatric issues until 2009, with a new patient visit in May 2009 giving a history of having been seen in 2003 for anxiety. Following general examination he was assessed with anxiety/depression and he was concerned about bipolar disease. Request was given for mental health. In a June 2009 record he reported struggling with anxiety and depression for the last 7-9 years and was assessed with generalized anxiety disorder (GAD). In a March 2010 psychiatry note the Veteran reported that he was always somewhat nervous and that in the military he was told that he seemed anxious and jittery at times but did not seek treatment. No mention was made of being bullied. He was noted to have a history of a panic attack sending him to the emergency room several weeks after injuring his shoulder in 2002. The rest of the note focused on his issues with medication side effects and his doctor believing he might be bipolar. He was noted to not have been seen for psychiatric issues again until 2009. He expressed a belief that he might be bipolar and reported periods of excess energy and periods of low mood and thoughts of death/suicidal thoughts without plan. He was assessed with bipolar disorder NOS versus anxiety disorder NOS but was requesting treatment for bipolar disorder. The same history was given in May 2010 and July 2010, again with mood swings noted and diagnoses of anxiety disorder versus bipolar disorder NOS. An August 2010 record addressing his mental health history noted the Veteran to be unemployed for 1 12 years and taking care of his mother. He gave a history of being regularly abused by his brother from age 7 or 8 to early teens. He also gave a history of being picked on, made fun of, and provoked to tears both during high school and the military. He was diagnosed with anxiety disorder NOS, and dysthymic disorder. Records from September 2010, June 2011, and August 2011 gave diagnoses of dysthymic disorder and anxiety disorder NOS. In December 2011 he was assessed as having PTSD as a result of the physical abuse he suffered. A May 2012 counseling note revealed he was seen for PTSD and dysthymic disorder. In August 2012 he was seen in psychiatry for PTSD, dysthymic disorder, alcohol abuse, complaints of excessive anxiety and lack of confidence. The history of his having been beaten up by his brother was noted. VA treatment records show that in February 2015 and March 2015, he was treated for persistent depressive disorder with anxious distress moderate, questionable bipolar disorder II, personality disorder, and obsessive compulsive disorder. He was noted to have recently quit his job because of pain in his neck and left shoulder in the February 2015 note and in March 2015 he was recently employed as a security officer. Records from March 2017 and May 2017 noted the Veteran to continue with the same diagnoses as shown in 2015 and noted him to be studying to obtain a degree in criminal justice. Social Security Administration records include an August 2018 private psychiatric examination including a VA Disability Benefits Questionnaire and typed report which diagnosed him with an unspecified depressive disorder. He denied a mental health history prior to the military. He gave a history of depression having started in the military where he was bullied, picked on, demeaned, and made to feel inferior. He also noted that family members (grandparents) passed away, but he was not granted leave to attend their funerals. He also reported tinnitus with chronic ringing in his ears, difficulty communicating, misunderstands others, poor concentration and frustration asking others to repeat themselves. Supportive documentation was also reviewed, to include the records in the claims file. Also reviewed were medical treatises discussing the emergence of mental health symptoms in service as well as literature detailing the association between tinnitus and co-morbid psychological disorders including a high prevalence of anxiety and depression in tinnitus sufferers. The examiner provided an opinion based on interview and review of the claims file that the Veteran suffers from unspecified depressive disorder that more likely than not began in service, continued uninterrupted to present and is aggravated by his tinnitus. The evaluator also gave an opinion that the Veteran's psychiatric disorder prevents him from maintaining substantially gainful employment. A June 2019 VA examination confirmed that there was no diagnosis of PTSD. The current diagnosis was other specified depressive disorder. Medical diagnoses relevant to the understanding or management of the mental health disorder included OSA, benign prostate hypertrophy, and type 2 diabetes mellitus. The Veteran had a childhood history of being physically abused by an older brother on a regular basis, including being beaten up and verbally abused daily from the age of 7 or 8 to early teens. He also had a history in high school and military of being picked on, provoked to tears and made fun of, and eventually was ostracized. At this examination he reported being verbally bullied in high school and by siblings at home, as well as in the military. He was noted to have dated infrequently in the past and not in the last 10-20 years citing self-esteem issues from being bullied in high school. Regarding his military experience, he denied being physically assaulted or in any combat operations. He was just subjected to verbal taunting in service. Post service he was noted to have held "lots of factory jobs." He was laid off from some jobs, while at others he was promoted. He disliked the jobs, viewing factory work as "a means towards an end." He found his co-workers to be gossiping "busy-bodies who spread rumors." His longest period of steady employment lasted six years, ending after he started to have "sleep and mood issues" in 2000. He did not work from 2009 until six months ago, when he started to work part-time as a Lyft driver. He worked 3-4 hours/day on a few days a week and recently completed an online bachelor's degree in Criminal Justice with a grade point average of 3.86. He was noted to have a history of mental health treatment beginning in 2003 during which he was variously diagnosed in a period of three months with panic disorder without agoraphobia, dysthymic disorder, mood disorder not otherwise specified, and anxiety disorder not otherwise specified. He dropped out of VA mental health care until 2009. He has consistently remained in VA mental health care since then, seeing a sequence of psychiatrists. He endorsed current symptoms of mildly depressed mood and difficulty maintaining sleep. Of note, he has untreated OSA and takes long afternoon naps, both of which are sleep hygiene problems that can interfere with sleep, along with awakening to urinate. He has been taking Cymbalta for a decade, and it has stopped his anxiety symptoms. He said that he had panic attacks "years ago," but Cymbalta has ended them. He denied delusions, hallucinations, or specific paranoid beliefs. The examiner had the veteran fill out the LEC-5 (Life Events Checklist), which is a checklist of lifetime exposure to stressors. He did not report any experiences that met Diagnostic and Statistical Manual PTSD Criterion A. His description of verbal harassment and humiliation aboard his first ship also does not meet PTSD Criterion A. Therefore, a diagnosis of PTSD is ruled out. The examiner further noted that on September 20, 2012 the Veteran told his psychiatrist that he had been diagnosed with bipolar II disorder and had been accepted into a research study. Later, it was clarified that he had not been accepted into the study. Notes from UH were not provided for review. In subsequent notes, the psychiatrist was noted to have given a diagnosis of "Bipolar II Disorder" followed by a question mark, along with her own diagnosis for the veteran of dysthymia. At a later date, the psychiatrist concluded that the Veteran had an additional diagnosis of obsessive-compulsive personality disorder, along with dysthymia (currently renamed in DSM-V as persistent depressive disorder. A functional capacity assessment performed for Social Security Administration purposes, dated September 5, 2018 listed his diagnoses as generalized anxiety disorder and adjustment disorder and noted that there was a lack of evidence for memory problems. The examiner reviewed the STRs and noted no psychiatric symptoms, diagnoses, complaints, or treatments noted either during active duty service (1988 to 1992) or when he enlisted in the Navy Reserve in 1996. The first clinical evidence of record related to mental health was found in private medical records from 2002 when he reported "depressive mood swings" and anxiety. The examiner noted the remand instructions asked the examiner to determine whether the Veteran had bipolar disorder and then to opine if it was as least as likely as not aggravated by military service. The examiner noted the records showed numerous instances where the Veteran said he believed he had bipolar disorder starting in 2003 and a diagnosis in February 2010 where he was diagnosed with "bipolar disorder not otherwise specified versus anxiety disorder not otherwise specified," with the examiner stating that in other words, this was not a confirmed diagnosis. The examiner noted that other records did not clearly diagnose bipolar disorder including in March 2012 where he was deemed by his psychiatrist to not have bipolar disorder but diagnosed PTSD and dysthymia, without documentation of what stressor supported a diagnosis of PTSD and no documentation of an assessment for the diagnostic criteria for PTSD. The examiner noted the Veteran's history of having a captain's mast for underage drinking with the records showing a nonjudicial punishment for a false civilian ID. He otherwise had an unremarkable legal history or substance use history after service. The examiner stated that the stressor of being verbally taunted and humiliated by fellow service members in the military did not meet the criterion A to support a diagnosis of PTSD. Nor was the stressor related to fear of hostile or terrorist activity or personal assault. No criterion for PTSD was met. Behavioral observations were generally unremarkable, and his affect was euthymic and to outward appearances calm. He gave logical, coherent, rational, and organized responses to all questions without losing the thread of the conversation. Judgement was within normal limits and psychotic symptoms were neither observed nor reported. The examiner gave an opinion that the Veteran does not meet diagnostic criteria for a personality disorder. He had a post-military diagnosis of obsessive-compulsive personality disorder, but neither his medical records nor his account of his own symptoms fits any of the DSM-5 diagnostic criteria for this or any other personality disorder. The Veteran's current symptoms meet DSM-5 criteria for other specified depressive disorder and gave a detailed explanation as to why this diagnosis and no other diagnoses, was met under the DSM-5. The examiner opined that it is not as least as likely as not that the veteran has PTSD stemming from his reported experiences of being verbally harassed, taunted, and humiliated while in military service. The examiner gave a detailed rationale to support this opinion, again pointing that verbal harassment and taunting/humiliation does not meet PTSD Criterion A, which requires experiencing or being threatened with death, serious injury, or sexual violence. The examiner further noted that the STRs are absent mental health complaints, symptoms, diagnoses, or treatments. The examiner further noted that although the Veteran had a clinical diagnosis of PTSD years ago related to childhood trauma, the diagnosis is of questionable validity because there was no documented assessment at any time for the diagnostic criteria for PTSD. The examiner further pointed to the lack of evidence of a clinical diagnosis of PTSD related to the claimed in-service stressor of verbal harassment, nor was there a PTSD diagnosis with a nexus in any military experiences. There was also no current diagnosis of PTSD. The examiner further opined that the Veteran does not have a current clinical diagnosis of bipolar disorder and cited to the medical evidence which was noted to conflicting as to whether there a diagnosis of bipolar disorder. The examiner further noted that should VA review conflicting medical evidence and decide that the Veteran does have a diagnosis of bipolar disorder, it would be the examiner's opinion that it is less likely than not that the Veteran's bipolar disorder was incurred in or proximately due to any aspect of military service. The examiner provided adequate rationale, which cited the lack of mental health issues in service, no diagnosis of bipolar disorder until 18 years after service and a history of the disorder reportedly in the Veteran's family members with there noted to be a genetic component in the diagnosis of bipolar disorder. Finally the examiner determined that it is less likely than not that the veteran has a diagnosis of any mental health condition that is proximately due to or the result of military service or of any events during military service. The rationale for this opinion again pointed to the lack of mental health issues in service and pointed out that the evidence of record shows that the first time he was diagnosed with any mental condition was in 2002, when he was diagnosed with an anxiety disorder by his primary physician a decade after military service ended. The examiner further addressed the August 2018 opinion from the private psychologist and compared the conflicting medical evidence including the Veteran's statements that prior childhood abuse and family issues may have caused his psychiatric disability, and not the more recent statements that harassment during active duty is the cause. Although the Veteran is considered for VA purposes to be an accurate reporter of his symptoms unless there is evidence to the contrary, his opinions concerning the cause of his symptoms (i.e., child abuse and family issues versus in-service verbal harassment) are a lay opinion about etiology that VBA does not consider to be of probative value. The examiner noted that the previous Board remand pointed to reasons to doubt the Veteran's credibility concerning his military experience including the Veteran reporting no access to medical care other than that aboard his small ship, "which is not credible as the records show many treatment encounters ashore and that ships are not continuously at sea." The examiner also reviewed the statements from the Veteran's family members including his sister-in-law and brother both described changes in the veteran's behavior during service, including being more interpersonally distant, anxiety around crowds, feeling people are judging him, and a serious manner. The examiner stated that although these buddy/lay statements describe a change in behavior following military service, they do not establish that the claimed verbal harassment occurred. This conclusion would be an example of a type of logical fallacy known as circular reasoning and the examiner further explained that the causal attribution of the behavior change to something in military service is assuming what one is trying to prove is the case. There are other reasons that people's behavior may change after military service, such as issues in readjusting to civilian life, the normal progression of a personality disorder that originated during the developmental period, substance use, and situational stressors. The examiner noted that the August 2018 private psychologist gave a phone interview and observed that a mental health DBQ submitted by a private provider and based on a telephone interview with a Veteran is not acceptable or actionable for rating purposes under any circumstances. The VA examiner stated that the August 2018 opinion should be given little weight because she did not formally meet the Veteran and relied on opinions based on group research data showing correlational rather than causal associations. Furthermore, the August 2018 private psychologist failed to address disconfirming data for her hypothesis. Another DBQ was obtained by a private examiner in August 2020. The examiner noted that the Veteran was noted to last worked in 2009 and was on Social Security Disability (SSD). He lived with a relative and had little social interaction. He was never married, and no children. He worked about three hours per day for a cleaning company and had a weekend security job. He attempted to work more hours for cleaning company but became too stressed so reduced his hours. His mental status examination was generally unremarkable although he was mildly dysphoric and he admitted to mildly depressed mood and social isolation, worrisome thoughts, feelings of helplessness, low self-esteem, anhedonia, low motivation, low stress tolerance, sadness, irritability, feelings of impending doom and self-doubt. The Veteran reported that he was bullied in Navy and felt constant hostility. He eventually began having sleep problems and anger issues. Had to relocate his bunk to avoid harassment. He attempted to inform superior officers of the bullying who then began treating him differently. He stated he would have sought mental health support but there was no psychiatrist on ship. He said he began drinking to self-medicate his anxiety and sleep problems. He also had suicidal ideations. Regarding an onset of mental health symptoms the collateral data suggested no anxiety or depression prior to service. He described himself as outgoing, exuberant, and bubbly as teenager. He also described his childhood as stable and happy, which conflicted with the 2019 VA examination which suggested a difficult childhood and abuse by brother and alcoholic father. From this information, the 2019 examiner extrapolated that Vet's mental health symptoms began in childhood. However there was no evidence to suggest this, with normal exam on entrance in the STRs. Though abuse by parents or siblings may figure into overall adjustment, such experiences are not tantamount to a diagnosis of depression. On interview, the Veteran recalled his father disciplined him with belt and his brother bullied him. But he contrasted this with the shipmates saying they were much worse, and he was stuck on a ship with them. The private examiner reviewed evidence from the claims file and concluded that the Veteran's depressive and anxiety symptoms more likely than not began in service. His mental health symptoms have been aggravated by his tinnitus. Finally his mental health symptoms were present and of the same severity from the date of his claim in July 2011, have continued uninterrupted until the present and are severe enough to prevent gainful employment. Upon review of the foregoing, the Board finds that the June 2019 VA examination to be of significant probative weight, as such examination included a comprehensive examination with testing, review of the evidence in the claims file at the time of this examination including conflicting medical evidence, and contained adequate rationale for each opinion. This rationale explained in detail why the conflicting medical evidence was not probative, to include the findings and favorable opinion from the August 2018 private examination and the medical treatise evidence. The Board further notes that June 2019 opinion is supported by the records addressing the Veteran's psychiatric symptoms from 2002, 2003 and 2009 up to August 2010, which did not include any findings or complaints linking any psychiatric symptom to service, nor was possible in-service bullying even mentioned until August 2010. Even then, the in-service bullying reported in August 2010 was addressed together with bullying in childhood and high school and was not given as the basis for a psychiatric diagnosis. Moreover the psychiatric treatment records dated prior to the time he filed his claims for PTSD and other psychiatric disabilities in July and August 2011, focused on the physical abuse the Veteran repeatedly reported he suffered at the hands of his brother. Even after such claims were filed, a December 2011 record determined he had PTSD due to such physical abuse. Likewise the lack of psychiatric problems shown in the service treatment records and the generally highly favorable reviews of the Veteran in the service personnel records tend to support the June 2019 opinions. Further such records showing a complete lack of psychiatric problems during service do not support a finding of any psychiatric disorder preexisting service and being aggravated by service. Again, his psychiatric symptoms were not shown until 2002 and were shown to have begun following a June 2002 work injury with a panic attack a week later. For these reasons, the Board finds the favorable opinions in the August 2018 private examination and the more recent private examination opinion of August 2020 be of less probative weight than the June 2019 VA examiner's opinion. The August 2020 examiner's opinion is similar to that given in the August 2018 opinion which had been disputed by the June 2019 VA examiner. Further although the August 2020 opinion was not reviewed by the June 2019 VA examiner, the Board finds that the August 2020 opinion included a history given by the Veteran of a happy, stable childhood and being an exuberant, "bubbly," and outgoing teenager. This is in total contrast not only with the June 2019 examination findings, but the other psychiatric treatment records which described him as having difficulties in childhood being constantly abused by a sibling and of being bullied as a teenager. Thus the Veteran's history relied upon by the August 2020 opinion appears unreliable and the probative value of this opinion is diminished. The Board therefore assigns significant credibility to the June 2019 VA examiner's opinion which finds that there is no diagnosis of PTSD due to lack of a stressor found adequate to support such a diagnosis and that that it is less likely than not that the veteran has a diagnosis of any mental health condition that is proximately due to or the result of military service or of any events during military service. Therefore, the Board finds that the preponderance of the competent and credible medical evidence does not support a finding of a nexus between the Veteran's psychiatric disorder and his active military service. There is also no evidence of a psychosis manifest within the first post service year. Finally the preponderance of the evidence is against a finding that the Veteran's psychiatric disorder is caused or aggravated by service-connected tinnitus. The Board acknowledges that the Veteran himself has claimed his psychiatric disorder is directly related to his active service or secondary to tinnitus. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, his lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). As for the medical opinions that attempted to link the psychiatric disorder to his tinnitus, these opinions from August 2018 and August 2020 to be of diminished probative value and lacking in adequate rationale. There is not shown to be any probative medical evidence showing his psychiatric disorder is due to or aggravated by his tinnitus. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a psychiatric disorder. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for OSA, claimed as secondary to an acquired psychiatric disorder The Veteran contends that service connection is warranted for OSA, including as secondary to a psychiatric disorder. In an October 2018 Third Party Correspondence, it is alleged that his psychiatric disorder contributes to and aggravates his OSA. The question for the Board is whether the Veteran has a current disability that was incurred in or aggravated by service or absent that, was caused or aggravated beyond natural progression by service-connected disability. Service treatment records do not show any complaints of or treatment for any sleep disorder, and periodic examinations and dental questionnaires were repeatedly normal with the report of medical history negative for sleep disorder complaints including on entrance in August 1996 and separation in May 2012. In May 2009, while being seen for complaints that included an assessment of anxiety/depression, a request was also given for possible OSA and a sleep lab. In June 2009 he was referred to sleep medicine for daytime sleepiness and snoring with witnessed apnea, late sleep onset and frequent awakenings. In August 2009 he underwent a sleep study and was diagnosed with OSA. In March 2013, a sleep study again confirmed the diagnosis of sleep apnea, diagnosed as mild with snoring. Subsequent treatment records noted his diagnosis of sleep apnea but contained no opinions regarding causation. The report of a June 2019 VA examination diagnosed OSA. The examiner noted his history of diagnosed OSA with a March 2013 polysomnogram confirming OSA, but he did not tolerate the CPAP. He last used it in 2014. Service treatment records did not reveal symptoms or findings of OSA. The examiner opined that there is insufficient evidence that a psychiatric disability contributes to OSA. It is less likely than not that OSA was caused by any aspect of active service or aggravated by his psychiatric disability. The Board finds this opinion is probative and is not contradicted by any other medical evidence. Moreover the Board has determined that service connection for a psychiatric disorder is not warranted, thus it is immaterial whether the OSA is related to that condition. None of the medical evidence addressing his OSA has shown it to be related to service or otherwise aggravated by his lone service-connected disability of tinnitus. Therefore, the Board finds that there is no competent and credible evidence of a nexus between the Veteran's sleep apnea disorder and his active military service or of a sleep apnea being caused or aggravated by a service-connected disability of tinnitus. The Board acknowledges that the Veteran himself has claimed his sleep disorder is directly related to his active service or secondary to tinnitus. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, his lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for OSA. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to total disability based on individual unemployability (TDIU) is denied It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (b), all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). The Veteran is service connected for tinnitus rated at 10 percent disabling. This is his lone service-connected disability. Accordingly the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16 (a) are not met, triggering consideration of whether referral for extra-schedular consideration is appropriate. The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, the Veteran's non-service-connected disabilities and advancing age are not for consideration. See 38 C.F.R. § 3.341 (a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran contends that he is entitled to TDIU due to service-connected disabilities. In his April 2019 application for TDIU benefits he reported having finished high school and had a Bachelor of Science degree from college. His work history included working in assembly from 2005 to 2009 earning as much as 2500 a month and most recently working for a ride share to December 2018 at $800 a month. The lone service-connected disability of tinnitus is not shown to result in unemployability. In the August 2017 VA examination addressing tinnitus, the functional impact on his daily life, including ability to work was noted to be that the tinnitus gave him a little bit of dizziness and nausea. The symptoms were ringing in his right ear only which occurred 3 or 4 times a week with each episode lasting 10 seconds. None of the records addressing his work history indicated that the Veteran's tinnitus rendered him unable to obtain and maintain substantial gainful employment. As noted in the discussion addressing his psychiatric claim, records from February and March 2015 noted he left a job due to neck and shoulder pain and he began working as a security officer. The records also noted that he was working to obtain a BA in criminal justice in 2017. More recently records from 2020 showed that he was actively working with the VA Compensated Work Therapy Program (CWT) and sending out employment applications to various potential employers. . In the records including VA examination and SSA examinations, none of the evidence indicated that tinnitus resulted in unemployability. As noted above, the Veteran's combined evaluation does not meet the schedular criteria for a TDIU as his lone service-connected disability rating is 10 percent disabling. After review of the entire evidence of record, the Board finds that the Veteran's disability picture does not warrant referral to the Director/Undersecretary for extraschedular consideration as the record does not tend to reflect that he was unable to maintain substantially gainful employment due to his service-connected disabilities. Continued on Next Page The medical evidence of record does not provide support for a finding that the Veteran is unable to maintain substantially gainful employment due to his service-connected tinnitus and he has no other service-connected disabilities. Thus, extraschedular referral is not in order and entitlement to a TDIU due to service-connected disabilities is denied. K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.