Citation Nr: 21069543 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-12 606 DATE: November 18, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for cervical dysplasia is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence weighs against finding that the Veteran's PTSD is attributable to her military service. 2. Cervical dysplasia, in and of itself, is not a ratable disability for which service connection may be established, and there is no evidence of a current gynecological disability of any sort related to findings noted in service. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for PTSD. 38 U.S.C. §§ 1110, 5107, 5303, 38 C.F.R. §§ 3.102, 3.2, 3.12, 3.303, 3.304, 3.384. 2. The criteria also are not met for entitlement to service connection for cervical dysplasia or other gynecological disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to November 2008. This appeal to the Board of Veterans' Appeals (Board) is from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In her Substantive Appeal to the Board, on VA Form 9, the Veteran requested a hearing before a Veterans Law Judge of the Board. But she failed to appear for her hearing that was scheduled for in October 2021. She did not provide any justifiable reason or explanation (good cause) for her absence or request to have her hearing rescheduled, so the Board deems her hearing request withdrawn and is proceeding to adjudicating her claims for service connection for PTSD and cervical dysplasia and remanding her remaining claim for sleep apnea back to the RO, so back to the Agency of Original Jurisdiction (AOJ), since it requires further development before being decided on appeal. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Conversely, competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence also may mean statements conveying sound medical principles found in medical treatises. As well, competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for PTSD The Veteran contends that she is entitled to service connection for PTSD in addition to her already determined to be service-connected other specified bipolar and related disorder that has been rated as 100-percent disabling, so totally disabling, effectively since June 1, 2015. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishing service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Ordinarily, separately diagnosed injuries are rated individually and then combined into a single rating to determine the overall impairment of a veteran's condition. 38 C.F.R. § 4.25. However, VA regulations prevent claimants from receiving multiple awards for the same impairment simply because that impairment could be labeled in different ways, known as pyramiding. 38 C.F.R. § 4.14. "The basis of disability evaluations is the ability of the body as a whole, or of the psyche, to function under the ordinary conditions of daily life including employment." 38 C.F.R. § 4.10. With respect to mental health disorders, the amount of impairment is measured by the social and occupational difficulties caused by a veteran's disorder. 38 C.F.R. § 4.130. The Court has addressed the applicability of this regulation in the context of mental health disorders. Amberman v. Shinseki, 570 F.3d 1377 (2009). In that case, the Court held that "the critical element is that none of the symptomatology for any one of these conditions is duplicative of, or overlapping with, the symptomatology of the other... conditions." Id. at 1381 (quoting Estaban v. Brown, 6 Vet. App. 259 (1994)) (emphasis original to Estaban) (ellipses denotes only that the specific number of conditions being analyzed in Estaban, reproduced in Amberman, have been removed). Thus, Amberman holds that where any of the symptoms of one service-connected mental health disability overlap with the symptoms of any other disability, it is appropriate to rate the two disabilities together as a combined manifestation under the criteria set forth in 38 C.F.R. § 4.130. That said, the Court also has explained that a claim for a mental disorder is not limited to the specific disorder claimed and requires considering all diagnoses and their possible attribution to the Veteran's military service. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Here, on May 2014 VA mental health examination, the examiner diagnosed bipolar II disorder and PTSD, delayed onset. However, the examiner indicated that the Veteran's PTSD is due to childhood molestation and being raped in 2011 (so owing to events that occurred both prior to and since her military service). While the VA examiner readily identified two psychiatric disorders and provided two etiologies, the examiner indicated that it was not possible to differentiate what symptoms are attributable to each individual diagnosis due to " significant overlap" between the two disorders." See Mittleider v. West, 11 Vet. App. 181 (1998) (explaining that, in this circumstance, VA adjudicators must resolve this reasonable doubt in the Veteran's favor and, for all intents and purposes, presume the symptoms are attributable to the service-connected disability). But, to this end, that is partly the reason the Veteran has a 100 percent rating for her other specified bipolar and related disorder which is concession that she has total occupational and social impairment owing to this disorder. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9432. The Board sees that subsequent VA examinations do not show a diagnosis of PTSD. After August 2015 and February 2021 VA examinations, the diagnosis was Other Specified Bipolar and Related Disorder, hence, to reiterate, the reason the Veteran's disability is characterized in this way. Because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation generally will be assigned that encompasses all of the Veteran's overlapping psychiatric symptoms. While separate ratings may be warranted for different psychiatric disorders in some circumstances, Amberman 570 F.3d at 1381 ("We recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability"), separate ratings are not warranted in this case given the specific medical findings. With respect to the May 2014 PTSD diagnosis, even acknowledging it, there is no competent medical opinion of record establishing the required relationship ("nexus") between this condition and anything especially traumatic that occurred during the Veteran's service, as opposed to before or since her service. In fact, the only medical opinion of record addressing the origins of that PTSD diagnosis indicates it is more likely related the unfortunate 2011 rape after service that, in turn, triggered memories of being molested as a child, so before service. Moreover, this is a complex medical question concerning which lay testimony is not competent. Clemons, 23 Vet. App. 1 at 6 ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). Thus, the Veteran is not entitled to service connection and a separate rating for symptoms or impairment owing to PTSD, meaning in addition to the 100 percent rating she already has for her Other Specified Bipolar and Related Disorder. Accordingly, service connection for PTSD is denied. 2. Entitlement to service connection for cervical dysplasia The Veteran asserts that her cervical dysplasia is related to her military service. The Veteran's service treatment records (STRs) show that she had five abnormal pap smears. Colposcopies showed low-grade squamous intraepithelial lesion (LGSIL) and human papillomavirus (HPV). An October 2006 treatment record shows a normal colposcopy. An April 2010 post-service pap smear was negative for abnormal cells. The Veteran underwent a VA gynecological conditions examination in April 2014. The examiner discussed the Veteran's history of abnormal pap smears and gynecological issues during service and opined that the Veteran's current disability is less likely than not related to her service. Cervical dysplasia is not a disease or an injury, per se, but rather a cellular abnormality of the cervix revealed by a pap smear. Cervical dysplasia is not itself a disability. See 60 Fed. Reg. 19,853 (April 21, 1995). As indicated, the Veteran was shown to have cervical dysplasia during her active military service, but that resolved. There is no indication she was diagnosed with cervical cancer or other residuals during her service or at any time since during the appeal period. There simply is no evidence showing she currently has a gynecological disability related to the cervical dysplasia in service and, thus, service connection is not warranted. To the extent the Veteran contends otherwise, as a lay person without relevant medical training, expertise, or experience, she is not competent to diagnosis a gynecological disability or to provide an opinion on its etiology especially in relation to findings noted during her time in service. See Jandreau. For these reasons and bases, the preponderance of the evidence is against this claim, so the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. This claim resultantly is denied. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The Veteran contends that service connection also is warranted for sleep apnea. But, after preliminarily reviewing the record on appeal, it is unclear whether the Veteran has or has received a diagnosis of obstructive sleep apnea (OSA). A November 2020 VA treatment record references a private sleep study, but the results of that sleep study have not been associated with the record on appeal. The Veteran was scheduled for a VA examination at a facility approximately 90 miles from her home address. She therefore requested an examination closer to her home address because she could not afford to travel that far, and she could not leave her children. She requested to have the examination scheduled at a location nearer to her home address to facilitate the examination occurring. An examination was not scheduled closer to her home address, however, and VA should at least attempt to make this accommodation or perhaps have her do an at-home sleep study, if possible, to assist in determining whether she has OSA. Accordingly, this remaining claim is REMANDED for the following action: 1. Ask the Veteran to submit for the record (or identify and authorize VA to obtain) the report of any sleep study that she has undergone confirming she has OSA or at least has since the filing of this claim or proximate to that. If she submits an authorization for private records, obtain them. Also appropriately notify her if unable to obtain records she identifies with the required amount of information. 2. After receiving all additional records, arrange for the Veteran to be examined by an appropriate clinician to confirm she has or has had during the pendency of this claim a valid diagnosis of OSA (and, if a diagnosis of OSA is confirmed, ascertain its etiology). If a valid sleep study (not shown in the current record) has not been done, have one done (even, if possible, an at-home one unless medically contraindicated). On examination of the Veteran and review of her record, the examiner should respond to the following: (a) Does the Veteran have a diagnosis of OSA confirmed by a sleep study? (Note: If the record does not show a valid (VA or private) sleep study that found OSA, a sleep study must be conducted. Mere references to a sleep study with report of such not included in the claims file are insufficient to establish she does versus does not have a sleep study confirmed diagnosis of OSA. If the Veteran declines to cooperate with arrangements for a diagnostic study that is necessary to confirm she has a diagnosis of OSA, it should be so documented in the record. (b) If a diagnosis of OSA is confirmed, identify its likely etiology in terms of whether incurred during the Veteran's service or attributable to her service. All opinions must include rationale, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.