Citation Nr: 21067263 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-43 386 DATE: November 3, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and chronic adjustment disorder with anxiety and depressed mood is granted. Service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. An acquired psychiatric disorder, to include posttraumatic stress disorder and chronic adjustment disorder with anxiety and depressed mood was incurred due to military service. 2. Sleep apnea was incurred due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to July 1992, including service in the Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2021. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court 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, consistent with Clemons, the Board has recharacterized the Veteran's claim as one for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and chronic adjustment disorder with anxiety and depressed mood. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by the medical evidence, between current symptoms and a stressor in service; and credible supporting evidence that the claimed stressor in service occurred. 38 C.F.R. § 3.304(f). Unless PTSD is diagnosed in service and the in-service stressor is related to that service, combat or to fear of hostile military or terrorist activity or to a prisoner-of-war experience or to a personal assault, the Veteran's lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor actually occurred. 38 C.F.R. § 3.304(f). The VA Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C. § 5107(b). 1. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and chronic adjustment disorder with anxiety and depressed mood. The Veteran asserts that he should be service connected for a psychiatric disorder, which he relates to trauma that he experienced during active-duty service when USS McCandless collided with a foreign cargo ship during onboarding. The Veteran submitted deck logs from USS McCandless in August and September 2018 verifying that a collision occurred in August 1991. See Veteran's September 2018 Submission. In an April 2015 statement, the Veteran explained that the collision was initially reported as a missile attack with confusing notifications of collision alerts, chemical protective wear alerts, and other distressing sounds. See April 2015 Statement in Support of Claim. The Veteran reports that he witnessed numerous serious injuries and sustained a head injury from a dislodged file cabinet. The Veteran also states that the received mental health counseling for the incident during service. See June 2015 VA Post Traumatic Stress Disorder Disability Benefits Questionnaire. In the May 2019 Supplemental Statement of the Case, the RO conceded the stressor of USS McCandless' collision based on verification from the carrier's naval history record. VA treatment records show the Veteran was diagnosed to have PTSD as well as chronic adjustment disorder with anxiety and depressed mood during the appeal period and is seeking counseling. See April 2018 VA treatment records. The June 2015 VA examination confirmed the Veteran's diagnosis of PTSD. While the examiner did not relate the incident to the Veteran's fear of hostile miliary or terrorist activity, she opined that the incident aboard USS McCandless was a stressor that contributed to the Veteran's PTSD, thus providing a link between the Veteran's current symptoms and a stressor in service. 38 C.F.R. § 3.304(f). The Veteran's spouse, who reported that she has known the Veteran since 1989, submitted a statement in June 2020 describing the Veteran's mental condition following separation from service. She remarked that the Veteran lacked energy and was constantly irritable. She also recounted the Veteran's revelation of the impact of the ship collision on the Veteran, as they vacationed on a cruise ship that reminded him of his experience on USS McCandless. The Veteran's spouse described his ongoing fear and vivid memories of the incident, as well as symptoms such as nightmares, and deteriorating mental health since service. See Statement from R.C. dated June 2020. While lay witnesses are not competent to establish that which would require specialized knowledge or training, such as medical expertise, 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. Layno v. Brown, 6 Vet. App. 465 (1994). R.C. is competent to describe symptoms of irritation, fear, and nightmare, and her statements are credible. Given that the service stressor was conceded by the RO, VA treatment records reflect that the Veteran has PTSD, and the June 2015 VA examiner related the Veteran's PTSD to the stressor that occurred during service, the evidence is at least in equipoise that the Veteran has an acquired psychiatric disorder, to include posttraumatic stress disorder and chronic adjustment disorder with anxiety and depressed mood due to his military service stressors. Resolving reasonable doubt in the Veteran's favor, it may be concluded that the Veteran's acquired psychiatric disorder was incurred in service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; 3.303(a). 2. Service connection for obstructive sleep apnea as due to an undiagnosed illness. The Veteran states that his diagnosed obstructive sleep apnea (OSA) began during service and has been recurrent since that time. The Veteran's service treatment records are silent for complaints or treatment for sleep apnea, but post service treatment records show a diagnosis of obstructive sleep apnea. See February 2014 and April 2015 Medical Treatment Records. In a September 2021 statement, the Veteran's spouse described his ongoing difficulties sleeping since discharge from service. Specifically, she reported that the Veteran snored loudly to the extent that they would often sleep in separate room, and that he would constantly gasp for air while sleeping. The Veteran's spouse reported that the symptoms have persisted since the Veteran's active-duty service in the late 1980s. The Veteran was afforded a Sleep Apnea Disability Benefits Questionnaire in May 2015. While examiner's findings did not support a correlation between obstructive sleep apnea and Persian Gulf War exposures, the examiner did not provide an opinion addressing the Veteran's reports that his sleep apnea had its onset during active duty. See McLendon v. Nicholson, 20 Vet. App. 79, 84 Indeed, the Veteran described experiencing symptoms of sleep apnea since active-duty service. See May 2015 Gulf War General Medical Examination Disability Benefits Questionnaire. The Veteran also presented credible sworn testimony that the symptoms have persisted since service. Id.; See also September 2021 Board Hearing Transcript. Here, in light of the competent and credible lay evidence from the Veteran and his spouse, the Board finds that the Veteran's obstructive sleep apnea became manifest while he was on active duty. Further, the evidence shows that he has been diagnosed as having this disability. As such, although a VA examiner has not rendered an opinion regarding whether the Veteran's diagnosed sleep apnea is otherwise related to service, the Board concludes that the evidence shows that the disability became manifest while the Veteran was on active duty and thus was incurred in service. 38 U.S.C. § 1110;1131, 38 C.F.R. § 3.102, 3.303(a). Thus, all three elements necessary to establish service connection have been met. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.