Citation Nr: 21073406 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-59 687 DATE: December 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for a respiratory disorder, other than sleep apnea, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has had at any time during the appellate period a psychiatric disorder, other than PTSD, that is productive of additional symptoms and manifestations resulting in a functional impairment in earning capacity separate and apart from that contemplated by the evaluation assigned to his service-connected PTSD. 2. The preponderance of the evidence is against finding that the Veteran has been diagnosed with a respiratory disorder or has had respiratory or pulmonary symptomatology productive of disability, at any time during the appellate period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a respiratory condition, other than sleep apnea, are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1984 to March 1988, with additional service in the Army National Guard. These matters come before the Board of Veteran's Appeals (Board) from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in June 2021, when the claims were remanded for development. The Board finds the June 2021 remand directives have been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 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). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In the absence of proof of a current disability, there can be no valid claim. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (holding, in relevant part, that service connection requires the existence of a current disability); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that "Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and that "[i]n the absence of proof of present disability there can be no valid claim") (citation omitted); Chelte v. Brown, 10 Vet. App. 268 (1997) (A "current disability" means a disability shown by competent medical evidence to exist.). 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. Procedural history By way of history, the Veteran presented a claim of service connection for PTSD, sleep apnea and respiratory issues in February 2016. See VA 21-526EZ of February 2016. He also submitted a statement in support of the claim for PTSD detailing his in-service stressors. See VA 21-0781, Statement in support claim for PTSD, of February 2016. A May 2016 rating decision denied the claims and the Veteran presented a notice of disagreement (NOD). See May 2016 rating decision and NOD of October 2016. A Statement of the Case (SOC) was issued on the matters in September 2017 and the Veteran perfected his appeal to the Board by presenting a VA Form 9 in November 2017. See SOC of September 2017 and VA Form 9, Appeal to Board of Veterans' Appeals, of November 2017. In the VA Form 9, the matters on appeal were characterized as service connection for a mental health condition, for sleep apnea and for a respiratory condition. See VA Form 9. In March 2021, the Veteran provided testimony before the undersigned. See hearing transcript. In June 2021, the Board remanded the matters for examinations and medical opinions. In the remand, the Board added as a separate issue the matter of "entitlement to service connection for an acquired psychiatric disability, other than PTSD" because the Veteran's medical records showed diagnoses of unspecified trauma and a stressor-related disorder. The Veteran's claim of service connection for PTSD was also remanded, along the issues of service connection for sleep apnea and for a respiratory disability. Pursuant to the Board's remand, the Veteran was afforded examinations for his conditions in August 2021. In September 2021, the agency of original jurisdiction (AOJ) issued a rating decision granting service connection for sleep apnea and service connection for PTSD. That same month a Supplemental Statement of the Case (SSOC) was issued addressing the matters of entitlement to service connection for an acquired psychiatric disability, other than PTSD and service connection for a respiratory disorder, other than sleep apnea. The matters have returned to the Board. 1. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD As noted in the procedural history, the Veteran originally presented a claim of service connection for PTSD which was recharacterized by the Board in its June 2021 remand. The Board recharacterized the matter as two separate issues: entitlement to service connection for PTSD and entitlement to service connection for an acquired psychiatric disorder, other than PTSD. The Board recharacterized the matter as two separate issues due to the multiple diagnoses of psychiatric disorders shown in the Veteran's medical records. This recharacterization was consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). During the pendency of the appeal and after the Board's remand of June 2021, the Veteran was granted service connection for PTSD and service connection for an acquired psychiatric disorder, other than PTSD was denied. Thus, although the benefit originally sought by the Veteran, namely service connection for his PTSD, has been granted, the issue remains as to whether service connection is warranted for any additional psychiatric manifestations, separate and apart from those attributable to the service-connected PTSD. Accordingly, the question before the Board is whether the probative evidence of record supports the finding that the Veteran has an acquired psychiatric disorder, other than PTSD. For the reasons explained in more detail below, the Board finds the preponderance of the evidence is against finding that the Veteran had had at any time during the appellate period an acquired psychiatric disorder, other than PTSD. The appellate period before the Board is from February 2016, forward. The Veteran's medical records have been associated with the claims file. These show that the Veteran was administered a psychological evaluation in June 2016 in preparation for a surgery. The psychologist that completed the evaluation noted that the Veteran's scores on the different questionnaires administered were difficult to interpret due to variability between the written and the verbal responses, which was speculated to be related to the Veteran's reported difficulties in opening up to others. Nonetheless, the psychologist interpreted the results with caution and stated that the Veteran's responses suggested a PTSD diagnosis could be indicated, as the Veteran was experiencing symptoms consistent with subthreshold PTSD. The psychologist also noted the results reflected a need for depression treatment as well, since the Veteran experienced some occasional mood disturbance secondary to stressors encountered during military service. The diagnosis noted per the DSM-5 was "unspecified trauma and stressor related disorder." See VA medical records for June 2016. VA medical records show that the Veteran was voluntarily admitted for mental health treatment in September 2020. The voluntary admission was due to the Veteran's reports of passive suicidal ideation. The Veteran reported struggling with depression, PTSD and grief and reported symptoms of low mood, fatigue, increase isolation, nightmares, insomnia, and sadness from the loss of his brother years prior. The medical records for this month note diagnoses of major depressive disorder, PTSD, anxiety not otherwise specified, and a history of adjustment disorder. See VA medical records for September 2020. In August 2021, the Veteran was administered an Initial PTSD Disability Benefits Questionnaire (PTSD DBQ). The examiner noted a diagnosis of PTSD, per DSM-5. No other diagnosis was rendered. The examiner noted having reviewed the evidence available and determined that the Veteran does not have more than one mental disorder. As to the symptoms associated with the Veteran's PTSD, the examiner noter the following: depressed mood, anxiety, panic attacks, near continuous panic or depression, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. Additionally, the PTSD DBQ included information as to how the Veteran's symptomatology met the diagnostic criteria for PTSD as specified in the DSM-5. See PTSD DBQ of August 2021. Following the examination, the examiner subscribed two medical opinions. In one, the examiner opined that the Veteran's PTSD was at least as likely as not related to his service. In favor of that opinion, the examiner noted the Veteran's symptoms of irritability, insomnia, anxiety, depression, hypervigilance, and isolation, began in service and had continued since then. The examiner also noted in this opinion the Veteran's medication, his mood as mostly "depressed, anxious," as well as the Veteran's reports of having difficulties staying asleep, among other symptomatology such as "poor motivation/interest/energy/concentration." See medical opinion for direct service connection regarding PTSD of August 2021. In a separate medical opinion, the examiner opined that the Veteran's only acquired psychiatric disorder is PTSD. The examiner noted having reviewed the evidence of record, including Veteran's lay statements and the Board's remand of June 2021. See medical opinion of August 2021. The Board observes the examiner did not provide a rationale or explanation for the opinion expressed in the document. Nonetheless, medical reports "must be read as a whole." Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Thus, while this opinion would be found inadequate for adjudication purposes, if read in isolation from other documents; the Board finds it is adequate in view of the other medical opinion addressing the Veteran's PTSD etiology and the PTSD DBQ of August 2021. The PTSD DBQ and medical opinion of August 2021 both attribute the Veteran's psychiatric symptomatology solely to his PTSD and no other psychiatric disorder. The Board assigns this opinion, in view of the PTSD DBQ and the other medical opinion of August 2021, high probative value as to the question of whether the Veteran has an acquired psychiatric disorder, other than PTSD. Based on the above and other evidence of record, the Board finds that the probative evidence of record does not support the finding that the Veteran has separate psychiatric diagnoses productive of distinct symptoms but rather, that the Veteran's psychiatric pathology or symptomatology has been collectively addressed by the different treating clinicians under various diagnoses throughout the appellate period, to include diagnoses of "unspecified trauma and stressor related disorder," major depression disorder and PTSD. The Board acknowledges that the Veteran's medical records indeed show many diagnoses for the Veteran's psychiatric symptomatology. However, the Board finds the different diagnoses noted in the medical records to be less probative than the findings noted in the June 2016 psychiatric evaluation and in the PTSD DBQ of August 2021 and accompanying medical opinions. The Board assigns the many diagnoses noted in the medical records less probative value than the probative value assigned to the June 2016 psychiatric evaluation and findings noted in the PTSD DBQ of August 2021 and accompanying medical opinions, due to the lack of reasoning or explanation regarding the applicability of the given diagnosis to the Veteran's symptomatology by the clinicians in the records and the evident lack of an attempt to reconcile the different diagnoses. The Board assigns higher probative value to the findings of the psychiatric evaluation of June 2016 and the findings noted in the PTSD DBQ of August 2021 based on their apparent completeness, when compared to the notes available in the medical records showing different diagnoses with no reasoning, and due to the noted consideration of the Veteran's history and symptomatology by the subscribers in rendering the diagnoses. The Board also observes that the psychiatric evaluation of June 2016 noted a diagnosis of "unspecified trauma and stressor related disorder" per DSM-5. On its surface, that diagnosis seems different from a diagnosis of PTSD. Nonetheless, the Board observes that the evaluation report, when read as a whole, shows the psychologist's assessment regarding the possible appropriateness of a PTSD diagnosis and the psychologist's association of the Veteran's occasional mood disturbances as secondary to the Veteran's PTSD stressors. See medical records for June 2016. The results of this evaluation seem to suggest that the Veteran only had a single acquired psychiatric disorder, that was consistent with a diagnosis of PTSD or unspecified trauma and stressor related disorder per DSM-5, and which manifested with symptomatology such as depression, anxiety, and nightmares, etc. The conclusion regarding the Veteran only having a single acquired psychiatric disorder is further supported by the August 2021 PTSD DBQ and accompanying medical opinions which determined that the Veteran's psychiatric symptomatology was associated with his PTSD only and that the Veteran did not have any other psychiatric disorder. Therefore, based on the above and other evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran currently has or had at some point during the appellate period a psychiatric disorder, other than PTSD, that is productive of additional symptoms and manifestations resulting in a functional impairment in earning capacity separate and apart from that contemplated by the evaluation assigned to his service-connected PTSD. Accordingly, the claim does not surpass the first prong of the Shedden service connection test, a current disability. Shedden, 381 F.3d at 1166-67. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). Thus, the preponderance of the evidence is against finding that the Veteran has had a psychiatric disorder, other than PTSD, at any time during the appellate period, and the claim of service connection for an acquired psychiatric disorder, other than PTSD, must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for a respiratory condition, other than sleep apnea The Veteran presented a claim of service connection for respiratory issues as well as a claim of service connection for sleep apnea. During the pendency of the appeal, the claim of service connection for sleep apnea was granted. Thus, the question that remains before the Board is whether at any time during the appellate period the Veteran has had a respiratory disability, other than his service-connected sleep apnea. In August 2021, the Veteran was administered a Respiratory Conditions Disability Benefits Questionnaire (Respiratory DBQ). The examiner that completed this examination report noted having reviewed the evidence available in the claims file, the remand of June 2021 and the transcript of the hearing. The examiner noted the Veteran's medical history including how he was diagnosed with congestion after complaining he could not breathe during service and his current symptomatology of sleep apnea and nasal congestion. The Veteran also underwent pulmonary function testing that revealed normal pre-bronchodilator results. The examiner concluded that the Veteran did not have a diagnosis of a respiratory condition nor a pulmonary condition. See Respiratory DBQ of August 2021. Following the examination, the examiner subscribed a medical opinion detailing some of the evidence reviewed and opining that the Veteran did not have a respiratory condition. In favor of this opinion, the examiner noted a lack of pathology and exam findings. See medical opinion of August 2021. The Board finds this medical opinion adequate in view of the evidence of record and assigns it high probative value. Based on the above and other evidence of record, the Board finds the preponderance of the evidence is against finding that the Veteran has had at any time during the appellate period a respiratory disability, other than his service-connected sleep apnea. Accordingly, the Board finds the claims does not surpass the first prong of the Shedden service connection test, a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). As the preponderance of the evidence is against finding the Veteran has a current respiratory disability, service connection is not warranted. In reaching this conclusion the Board has also considered the Veteran's medical records. However, these records do not show that the Veteran has complained of a respiratory symptom or that he has been diagnosed with a respiratory condition at any time during the appellate period. Notably, the majority of the medical records throughout the appellate period note the Veteran denied shortness of breath or other pulmonary symptomatology. See generally VA medical records. Thus, absent probative evidence of a current diagnosis of a respiratory condition or symptomatology productive of disability for VA purposes, the Board finds that the preponderance of the evidence is against the claim and service connection for a respiratory condition, other than sleep apnea, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.