Citation Nr: 21071943 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 10-10 379 DATE: December 1, 2021 ORDER Service connection for a sleep disability, to include sleep apnea, is denied. Service connection for an acquired psychiatric disability is denied. FINDINGS OF FACT 1. The Veteran's current sleep disability, to include sleep apnea, is not attributable to his active military service, has not been caused or aggravated by his service connected bilateral hearing loss and/or tinnitus, and an organic disease of the nervous system manifested by a sleep disability was not manifest within one year of his separation from service. 2. The Veteran's current psychiatric disability is not attributable to his active military service, has not been caused or aggravated by his service-connected bilateral hearing loss and/or tinnitus, and a psychosis was not manifest within one year of his separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sleep disability, to include sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to June 1970 in the United States Navy, with additional service in the Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2008 and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office. Service Connection VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, for certain chronic diseases, including psychosis and organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 1. Service connection for a sleep disability, to include sleep apnea, is denied. As the appeal arises from a complex procedural history, that history will be briefly summarized. In the October 2009 rating decision on appeal, the VA Regional Office denied the Veteran's claim for a sleep disability. In December 2012 and October 2014, the Board remanded the claim for further development. In March 2016, the Board denied the claim based on a finding that the Veteran did not have a current sleep disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court vacated the March 2016 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). In doing so, the parties found that a February 2015 VA medical opinion, on which the Board relied, addressed only whether the Veteran had sleep apnea prior to July 2009, contrary to the Board's underlying October 2014 remand directives. Additionally, while the October 2014 Board had requested that a medical examination be conducted, only an addendum medical opinion was obtained. The parties further found that, on remand, the Board should consider whether the duty to assist required affording the Veteran a sleep study. In May 2017, the Board remanded the claim for development consistent with the Joint Motion. In October 2019, the Board denied the claim. The Veteran appealed the Board's decision to the Court. In August 2020, the Court vacated the October Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion. In doing so, the parties found that there had not been substantial compliance with the Board's May 2017 remand directives. Specifically, a March 2018 VA examination report failed to address whether the Veteran had any sleep disorder, including one other than sleep apnea, at any point in the appeal period. Further, the examiner did not explain why a sleep study would not be helpful in reconciling the matter of a current disability. In December 2020 and July 2021, the Board remanded the claim for development consistent with the Joint Motion. Turning to the evidence, the Veteran has a current diagnosis of mild obstructive sleep apnea, documented on sleep study in July 2021. He reports that the nature of his military assignments required an irregular sleep schedule and resulted in chronic sleep deprivation. Additionally, his sleeping quarters were noisy as they were located below his ship's engine or the landing field where airplanes were coming and going, which constantly disrupted his sleep. He reports that he was unable to sleep for more than two to three hours at a time throughout nearly four years of military service. See written statements of February 2008, June 2009, July 2009. He has alternatively reported that his sleep disability is secondary to service-connected disabilities, which consist of bilateral hearing loss and tinnitus. On his May 1966 service entrance examination, no abnormalities pertinent to a sleep disability were found, and the Veteran raised no relevant complaints on the accompanying Report of Medical History. Service treatment records thereafter are silent for diagnoses, treatment, or complaints related to a sleep disability. On his June 1970 separation examination, no abnormalities pertaining to a sleep disorder were found. Following discharge, private medical records show that the Veteran reported having fatigue at a May 2002 cardiology appointment. He reported to his doctor that it may have been because of his current shift work. In May 2004, his cardiologist recommended that he undergo a sleep study to determine if his sleepiness was due to sleep apnea. A sleep study was conducted in June 2004, and showed occasional mild desaturation and mild hypopneas with supine sleeping. Follow-up records from his cardiologist show that, while the sleep study was abnormal, he did not require a C-Pap device. His cardiologist noted that because the Veteran continued to feel tired and had an abnormal sleep test, it may be beneficial for him to visit with a colleague who treated sleep disordered breathing problems. Records thereafter, however, do not indicate that such follow-up treatment was conducted. In a December 2008 record, his general practitioner noted that the architecture of his oropharynx was such that it would predispose him to developing sleep apnea. The Veteran continued to report feelings of fatigue and poor sleep at night in subsequent treatment records over the years. As for the etiology of the disability, the record contains numerous opinions. On VA examination in December 2013, the examiner noted the Veteran's reports of not sleeping well during military service due to small compartments, noise, and having intermittent night watch shift work. The examiner reviewed the 2004 sleep study and medical records dated since that time, and found the Veteran did not have sleep apnea. In the absence of such a diagnosis, the examiner opined it is less likely as not that the current symptoms were incurred during military service. The examiner noted that the Veteran performed shift work for 38 years after discharge. In February 2015, a VA medical opinion was obtained in response to a Board October 2014 remand. In the remand, the Board requested an opinion as to whether, since the July 2009 filing of the claim, the Veteran has had sleep apnea or any sleep impairment. The examiner, however, appeared to have misunderstood the inquiry, and opined that records dated prior to July 2009, did not indicate the presence of sleep apnea. The examiner opined that, as such, it was less likely than not that the current symptoms were incurred in or caused by service. In an June 2015 addendum opinion, the February 2015 VA examiner addressed the matter of the presence of a sleep disability since July 2009. The examiner stated that the medical record showed no evidence of sleep apnea or a sleep impairment. As such, the examiner further opined that sleep apnea, or a sleep impairment, was not caused by or permanently aggravated by any service-connected disability. In a separate June 2015 medical opinion, a psychiatrist noted that sleep apnea was not documented in the post-service medical record. He opined that the record did not support that sleep apnea, or any sleep impairment, was caused or aggravated by a service connected disability. On VA examination in March 2018, the examiner noted that the 2004 sleep study did not diagnose true obstructive sleep apnea, and that the 2008 statement from the Veteran's private physician about his oropharynx was also not diagnostic of sleep apnea. He stated that if sleep apnea had been an issue, the sleep study would likely have been repeated. The examiner stated that he interviewed the Veteran extensively, and that based on a review of the entire medical record, the Veteran's contentions, and current medical literature, even if the Veteran had current sleep apnea, it would hardly be due to the shift work he performed during military service many years prior. The medical literature did not support such a relationship. Rather, the Veteran's sleep disturbances appeared due to social issues, including caring for his spouse with serious medical problems. As such, it was not likely that the current disability was due to or related to military service, including the Veteran's sleep disturbances during military service. His symptoms and assignments onboard his ship were considered, but they would not cause a structural obstruction of the upper airway. Further, medical literature did not support that hearing loss and tinnitus would cause or aggravate sleep apnea. In an April 2021 VA medical opinion, the examiner reviewed the medical record and opined that the Veteran did not have a current or past sleep disability. The 2004 sleep study did not indicate sleep apnea or another sleep disability, and the 2008 notation regarding the Veteran's oropharynx stated that he was predisposed to developing sleep apnea, not that he had the condition. As such, the claimed condition was less likely than not incurred in or caused by service, or proximately due to or aggravated by the Veteran's service-connected hearing loss or tinnitus. On VA examination in September 2021, the examiner reviewed the claims file and examined the Veteran. He summarized pertinent evidence, including the 2006 private medical record noting that the 2004 sleep study was abnormal, and the 2008 record regarding the Veteran's oropharynx. The examiner reviewed the July 2021 sleep study showing mild obstructive sleep apnea. He opined that it is less likely than not that the current sleep apnea has been aggravated by or is proximately due to the service-connected hearing loss or tinnitus, as he was unaware of any physiologic connection or mechanism of exacerbation between sleep apnea and conditions that affect the ear. Rather, the pathophysiology of obstructive sleep apnea is attributable to both anatomical (structural) and neuromuscular (nonstructural) elements. Specifically, the examiner explained that sleep apnea is due to the obstruction and collapse of the pharynx within the upper airway, which causes breathing to repeatedly stop. The examiner additionally opined that the current sleep apnea was less likely than not caused by or related to service. He noted the Veteran's reports of having disrupted sleep and sleep deprivation throughout military service. While such reduced sleep states are not advisable for health, there is no data to support that they cause sleep apnea. Furthermore, the 2004 sleep study revealed a normal Apnea Hypopnea Index (AHI), indicating that the Veteran did not have sleep apnea at that time. Advancing age and increases in body weight are strong risk factors for the development of sleep apnea, but even in as late as 2004 (34 years after discharge), the Veteran did not meet the diagnostic criteria for sleep apnea. The examiner explained that those factors make it less likely than not that the current sleep apnea began in service or was caused by sleep deprivation in service. On VA psychiatric examination in September 2021, a psychologist opined that the Veteran did not meet the criteria for a sleep disorder diagnosis under the Diagnostic and Statistical Manual of Mental Disorders (DSM). As such, she opined that it is less likely than not that he has a DSM sleep disorder related to service or caused or aggravated by a service-connected disability. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the Veteran's current sleep disability is related to his active military service, has been caused or aggravated by his service connected hearing loss and/or tinnitus, or that a chronic disability was incurred in service. While the Veteran's reports of disrupted sleep and sleep deprivation in service are both admissible and believable, multiple VA examiners have explained that this is not indicative of, and does not cause, sleep apnea. His service treatment records are silent for pertinent documentation, and no abnormalities were found on his June 1970 service separation examination. Indeed, the evidence reflects that the current sleep apnea was not shown until decades after service discharge. The fact that he sought treatment for other conditions in and after service, but not obstructive sleep apnea, weighs against the credibility of any statement that obstructive sleep apnea was present in service and persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The medical opinion evidence is also persuasive. Six different VA examiners addressed the contentions of direct and secondary service connection, but opined that the current sleep apnea is not related to military service and has not been caused or aggravated by the service-connected hearing loss and/or tinnitus. They explained that the conditions during military service, including noisy sleep quarters, sleep deprivation, and an abnormal sleep schedule, were not indicative of sleep apnea and would not cause sleep apnea. Rather, several examiners explained that sleep apnea is due to a structural obstruction of the upper airway. The September 2021 VA examiner additionally explained that there is no known physiologic connection or mechanism of exacerbation between sleep apnea and conditions that affect the ear. The examiners based their conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. They reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. The Board has considered the 2006 private medical record indicating that the 2004 sleep study was abnormal, and the 2008 record regarding the Veteran's oropharynx, but these records do not contain an actual nexus opinion supported by a rationale. The only evidence to the contrary of the VA examiners' opinions is the lay evidence. The appellant, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as obstructive sleep apnea. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching this decision, the Board has considered the parties' concerns with the February 2015 VA medical opinion (expressed in the September 2016 Joint Motion), and with the March 2018 VA examination report (expressed in the August 2020 Joint Motion). Both Joint Motions indicated that a sleep study may be needed. This was accomplished in July 2021, and the subsequent September 2021 VA examination report was informed by the study. The remaining deficiencies noted in the February 2015 and March 2018 medical opinions were cured by the September 2021 VA examination report. Additionally, the Board's decision is not based on the deficient portions of the February 2015 and March 2018 medical opinions. Finally, to the extent the Veteran seeks service connection for his sleep disability as secondary to a psychiatric disability, and has submitted medical literature in support of such a relationship, because service connection has not been awarded for a psychiatric disability as described below, an award of secondary service connection cannot be made. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. 2. Service connection for an acquired psychiatric disability is denied. As the appeal arises from a complex procedural history, that history will be briefly summarized. In the August 2008 rating decision on appeal, the VA Regional Office denied the Veteran's claim for an acquired psychiatric disability. In December 2012, October 2014, March 2016, and May 2017 the Board remanded the claim for further development. In October 2019, the Board denied the claim. The Veteran appealed the Board's decision to the Court. In August 2020, the Court vacated the October 2019 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion. In doing so, the parties found that a February 2018 VA medical opinion, on which the Board relied, failed to provide adequate medical explanations for the conclusions reached. First, the examiner stated that, as the Veteran was not seen for mental health treatment within six months or one year after discharge, a nexus could not be established. The parties found the rationale insufficient because it did not explain why it would be necessary for the Veteran to have received mental health treatment within six months or one year in order to verify continuous symptoms since service. Second, the examiner failed to provide a rationale for his conclusions on the matter of secondary service connection. Third, the examiner did not explain why a nexus could not be substantiated based on the Veteran's lay statement of symptoms in service. In December 2020 and July 2021, the Board remanded the claim for development consistent with the Joint Motion. Turning to the evidence, the Veteran has a current diagnosis of unspecified depressive disorder in remission, documented on VA examination in September 2021. The Veteran reports that his depression began during military service due to feelings of isolation. He reports that opportunities to build a support system in the military were limited. He began to notice feelings of despair, as well as anger and resentment, as it became clear to him that promises made at enlistment were not going to materialize. See written statements of February 2008 and June 2009. He has alternatively reported that his psychiatric disability is secondary to service connected disabilities, which consist of bilateral hearing loss and tinnitus. On his May 1966 service entrance examination, no psychiatric abnormalities were found, and the Veteran raised no relevant complaints on the accompanying Report of Medical History. Service treatment records thereafter are silent for diagnoses, treatment, or complaints related to a mental health disability. On his June 1970 separation examination, no abnormalities pertaining to a psychiatric disability were found. Following discharge, a June 2001 private medical record shows a diagnosis of depression. In his February 2008 Veteran's Application for Compensation or Pension (VA Form 21-526), the Veteran reported that the depressive disability initially manifested in 1999. As for the etiology of the disability, the record contains numerous opinions. On VA examination in December 2013, the examiner reviewed the claims file and examined the Veteran. The Veteran reported that he had not experienced any psychiatric issues until his last ten years of his employment. The examiner opined that given the Veteran's symptom presentation, and on review of the record, he met the diagnostic criteria for a diagnosis of other specified depressive disorder. However, that disorder was not at least as likely as not incurred in or caused by military service. Rather, his depressive symptoms were caused by a combination of his medical conditions, the quality of his relationship with his wife, his early retirement, and his wife's significant medical problems. The examiner noted that the Veteran did not endorse his hearing impairment as a cause of his depressed mood. In an April 2015 VA medical opinion, the Veteran was diagnosed with depressive disorder, not otherwise specified. Approximately 20 years prior, or in 1995, the Veteran was placed on Wellbutrin for his symptoms. The examiner opined that the depressive disorder, first diagnosed 20 years prior, was not at least as likely as not aggravated by his service-connected tinnitus and/or hearing loss, and that the Veteran had never complained that his audiological disabilities affected his mental health. The examiner reiterated his findings in an July 2015 addendum opinion. In a June 2016 medical opinion, the examiner reviewed the record and opined that the Veteran's depression was less likely than not incurred in or caused by service. She noted that the first documentation of depression in the record is dated from 2008, 38 years after service discharge. She noted a lack of evidence linking the current disability to service. The examiner additionally opined that it is less likely than not that the depression was caused or aggravated by the Veteran's hearing loss and/or tinnitus. Rather, his depressive symptoms appeared to begin when his wife began having medical problems and the Veteran began having problems at work, leading to his early retirement. His depression was well-controlled by medication, and there was no indication of an increase that would suggest an aggravation by service-connected disabilities. In a February 2018 medical opinion, the examiner reviewed the record and diagnosed the Veteran with depressive disorder, not otherwise specified. He noted reports of anxiety, however, the record did not indicate the presence of an actual anxiety spectrum disability. The examiner noted the Veteran's statements of feeling depressed during service, and of continuous symptoms since discharge. However, he opined that the depressive disorder was less likely than not related to service given the lack of evidence sufficient for establishing a timeline of psychiatric intervention or a nexus to military service. Moreover, the Veteran's depression appeared secondary to his non-service related medical issues, work problems, retiring early, and caring for his ill spouse. The examiner further opined that the current disability was not caused or aggravated by service-connected hearing loss or tinnitus. On VA examination in April 2021, the examiner found the Veteran did not currently meet the DSM criteria for a diagnosis of anxiety or depression. As such, he opined that the current symptoms were not related to military service, and had not been caused or aggravated by the service-connected bilateral hearing loss and/or tinnitus. On VA examination in September 2021, the examiner diagnosed the Veteran with unspecified depressive disorder in remission. She noted that the disability was previously characterized as depressive disorder not otherwise specified under the DSM-IV. She determined that there were no findings, signs, or symptoms to support a diagnosis related to anxiety. While there were reports of anxiety in the record, there was no actual anxiety disorder diagnosis apparent under any version of the DSM, the Veteran denied clinically significant anxiety, and he did not appear on examination or at any other point in the appeal period to have met the criteria for an actual anxiety disorder diagnosis. As such, it was less likely than not that an anxiety disability was related to military service, or caused or aggravated by the service-connected bilateral hearing loss and/or tinnitus. The examiner opined that the current depressive disorder was less likely than not incurred in or caused by service. The record as a whole, including the Veteran's reports, contained a diversity of explanations regarding the onset of his symptoms. However, the examiner was unable to locate evidence in the records to suggest that unspecified depressive disorder started while the Veteran was in military service or was caused by military service; rather, the evidence pointed to an onset of a depressive disorder decades after discharge. Indeed, the Veteran himself reported on examination that his symptoms began in 2006 when his wife began having seizures and he was experiencing work stressors. The examiner additionally opined that the depressive disorder was not caused or aggravated by the Veteran's hearing loss and/or tinnitus. The examiner could not locate evidence to support such a relationship, and on examination, the Veteran did not indicate that his psychiatric symptoms were in any way related to hearing loss or tinnitus. Further, his symptoms of depression were well-controlled by medication and were in remission. As such, the examiner found it less likely than not that the depressive disorder was caused by, or worsened even temporarily by, his audiological disabilities. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the Veteran's current psychiatric disability is related to his active military service, has been caused or aggravated by his service-connected hearing loss and/or tinnitus, or that a chronic disability was incurred in service. His service treatment records are silent for clinical findings of a psychiatric disability, and no psychiatric abnormalities were found on his June 1970 service separation examination. A pertinent disability, including psychosis, was not found within one year of separation from service; rather, the evidence reflects that the Veteran's depressive disorder was not shown until decades after service discharge. The Board finds the Veteran's reports that his depressive disorder symptoms began in service are not credible given the inconsistencies of his accounts. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). While in 2008 and 2009 statements he reports that his symptoms began in service, he reported on his VA Form 21-526 that the symptoms began in 1999 (nearly 30 years after discharge), reported to the December 2013 examiner that the symptoms started in the last ten years of employment (decades after discharge), and reported to the September 2021 examiner that the symptoms began in 2006 (nearly 40 years after discharge). Further, the fact that he sought treatment for other conditions in service, but not a psychiatric disability, weighs against the credibility of any statements that his disability was present in service. See AZ, 731 F.3d at 1303 (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The medical opinion evidence is also persuasive. Five different VA examiners addressed the contentions of direct and secondary service connection, but opined that the current psychiatric disability is not related to military service, and has not been caused or aggravated by the service-connected hearing loss and/or tinnitus. The examiners examined the claims file and opined that his clinically-diagnosed depressive disorder, pursuant to the DSM, did not present until decades after service, is not related to service, and has not been continuous since service. Rather, other etiologies for the disability have been identified, including work stressors, medical problems, and caring for his severely ill wife who passed away. The examiners based their conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. They reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. The only evidence to the contrary of the VA examiners' opinions is the lay evidence. The appellant, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as unspecified depressive disorder. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching this decision, the Board has considered the fact that in the August 2020 Joint Motion, the parties deemed the February 2018 VA examination report "inadequate" as a whole. While the Board summarized the findings of that report above, in reaching the decision herein the Board has not relied on that report, and instead has relied on the remaining examination reports of record. Finally, to the extent the Veteran seeks service connection for his psychiatric disability as secondary to diabetes and other non-service connected conditions, because service connection has not been awarded for a disability other than hearing loss and tinnitus, such an award of secondary service connection cannot be made. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.