Citation Nr: 21067070 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-33 241 DATE: November 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating greater than 30 percent for service-connected asthma is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision regarding the claim for entitlement to a TDIU, the Veteran withdrew this issue from appeal. 2. Sleep apnea did not manifest during service and is not related to the Veteran's active service nor is it shown to be caused or aggravated beyond its natural progression by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to a TDIU by the Veteran have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.205 (2020). 2. Sleep apnea was not incurred in or aggravated by active service nor is it proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2000 to July 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2014 and July 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual hearing before the Board. A transcript of the hearing is of record. In the November 2014 Notice of Disagreement, the Veteran requested that his claim for service connection for PTSD be expanded to include an acquired psychiatric disorder. In Clemmons v. Shinseki, 23 Vet. App. 1, 5-6 (2009), the Federal Circuit held that although a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." In this regard, the Veteran's medical records reflect diagnoses of major depressive disorder. However, the agency of original jurisdiction (AOJ) denied service connection for depression in a September 2010 rating decision, to include as secondary to a service-connected disability. The Veteran did not appeal this decision nor did he submit new and material evidence within one year. Therefore, the September 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. Accordingly, to address service connection for MDD the Veteran must file to reopen the claim with the AOJ and submit new and relevant evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. For these reasons, the issue presently on appeal cannot be expanded to include MDD. I. Withdrawn Issue The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran withdrew at the July 2021 Board hearing the issue of entitlement to a TDIU. Thus, there remain no allegations of error of fact or law for appellate consideration regarding this issue. Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. II. Service Connection for Sleep Apnea Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, a disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or if it is aggravated beyond its natural progression by a service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a), (b). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Aggravation need not be permanent, and objective measurement or numerical quantification is not required to ascertain an increase in disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). The question here is whether the Veteran's obstructive sleep apnea diagnosed post service is at least as likely as not related to an in-service injury, event, or disease, or is proximately due to or aggravated by a service-connected disability. After reviewing the evidence on file, the Board finds that the evidence does not support the nexus requirement. The Veteran's service treatment records do not show complaints or findings related to sleep problems, including snoring. The first notation of sleep apnea symptoms is in a May 2013 VA treatment record. In this regard, a May 2013 VA mental health outpatient record shows that a sleep study was recommended due to the Veteran's report of interrupted sleep due to excessive snoring and gasping at times for air at night while sleeping. A subsequent VA mental health record in December 2014 notes that the Veteran had requested a sleep study months ago to rule out obstructive sleep apnea due to snoring. A sleep study was subsequently performed in February 2015 revealing mild obstructive sleep apnea with associated nocturnal hypoxemia. This diagnosis was made many years after service and there is no medical evidence linking the diagnosis to service or to a service-connected disability, to include asthma. The only evidence relating the Veteran's sleep apnea to service or to a service-connected disability are the opinions of the Veteran and his spouse. In this regard, they testified in July 2021 that they believe that the Veteran's sleep apnea is at least in part related to his asthma. While the Veteran is certainly competent to report what he experiences through one of the senses, the etiology of his sleep apnea is a complex medical matter beyond the expertise of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the opinion of the Veteran and his spouse with respect to the etiology of his sleep apnea is not credible evidence for rating purposes. Inasmuch as an essential element of the claim for service connection for sleep apnea has not been established, i.e., (3) evidence of a nexus between the present disability and a claimed in-service disease or injury or a service-connected disability, the weight of evidence is against the claim on this basis and the claim must be denied. 38 U.S.C.A. § 5107(b); Shedden, 381 F.3d at 1167; Wallin, 11 Vet. App. at 512. The Veteran's representative acknowledged at the Board hearing that there was no nexus evidence and he said they were hoping to get some nexus evidence from the Veteran's doctor. He went on to request that in the event they were not able to get such evidence, that the Veteran be afforded an evaluation to address the nexus element of service connection. In this regard, the Board notes that the Veteran has not been afforded a VA examination with respect to this claim. However, an examination is not warranted in this instance in view of the absence of probative evidence indicating that the Veteran's sleep apnea is related to service or to a service-connected disability. As the "low threshold" standard as to when an examination is required is not met; development for such an examination is not necessary. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) REASONS FOR REMAND Service Connection for PTSD The Veteran testified at the July 2021 Board hearing that he has PTSD related to his deployment to Iraq. He said that while in Iraq he smelled burnt bodies and was exposed to loud noises and sounds from bombs and guns constantly going off. See Hearing Transcript, page 9. He also said that he began to experience PTSD symptoms, including irritability and sleep problems, when he returned from his deployment. Medical records from a licensed VA social worker contain diagnoses of PTSD related to the Veteran's service in Iraq. However, to date, VA has not been able to verify that the Veteran served in Iraq. Rather, available records show only that he served in Alaska and Korea. In August 2019, the AOJ issued an addendum Formal Finding continuing an earlier determination that there was a lack of information to corroborate stressors associated with a claim for service connection for PTSD. In this regard, the AOJ determined that the information required to corroborate the stressful events described by the Veteran was insufficient to make further efforts to verify the stressors. Notably, the Veteran provided additional details at the July 2021 hearing regarding his service in Iraq. In this regard, he testified that he served overseas from approximately June 2002 to June 2005, and he explained that he had been stationed in Alaska before being sent to Saudi Arabia and then to Baghdad International Airport in Iraq. In consideration of the new information that the Veteran provided at the July 2021 hearing, the AOJ should make another attempt to verify his purported service in Iraq and the associated stressors. This requires a request for the Veteran's complete service personnel records to include a copy of his DA Form 20. The Veteran should thereafter be afforded a VA PTSD examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Increased Rating for Asthma The Veteran was last evaluated for his asthma disability in September 2014. He testified in July 2021 that his asthma has worsened since his last VA examination. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In consideration of the Veteran's hearing testimony regarding a worsening of his asthma, a remand is warranted for a new VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA psychiatric treatment records not already associated with the file, as well as records that relate to the Veteran's asthma, dating from July 2020, and all private treatment records from the Veteran not already associated with the file. 2. Ensure that the Veteran's complete service personnel file has been associated with his claims file, to include his DA Form 20. 3. Request that the Veteran provide any further details that are not currently of record concerning the alleged in-service stressors. The Veteran should be asked to identify the names of people who were involved in the incidents, the place where the incidents occurred, his assigned unit, and more specific dates or time frames for the incidents if possible. 4. Thereafter, prepare a complete summary of all claimed stressors based upon review of all pertinent evidence. Make attempts to verify the stressors by contacting the appropriate sources. If the stressors cannot be verified, prepare a formal finding stating why verification could not be completed, and listing the steps taken in the attempt to verify the stressors. 5. After completion of the above development, schedule the Veteran for a VA psychiatric examination. The examiner should review the claims file and address the following: Indicate whether the Veteran has PTSD that conforms to the DSM-5 criteria, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and the stressor(s). The examiner must state whether the claimed stressor(s) is adequate to support a diagnosis of PTSD. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain this finding considering the previous diagnoses of PTSD of record. 6. Schedule the Veteran for a VA examination to determine the current severity of his service-connected asthma. The examiner should review pertinent documents in the Veteran's claims file. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.