Citation Nr: 21074407 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-16 925A DATE: December 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability is granted. Entitlement to service connection for obstructive sleep apnea (OSA), claimed as a sleep disorder, is granted. Entitlement to service connection for chronic bronchitis is denied. Entitlement to service connection for essential tremors of the bilateral upper extremities is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder, as variously diagnosed, is at least as likely as not related to his active duty military service. 2. The evidence of record is at least in relative equipoise as to whether the Veteran's disability of obstructive sleep apnea was incurred in service. 3. Chronic bronchitis did not have its onset during active service and is not otherwise etiologically related to such service, to include as a result of alleged asbestos exposure. 4. Essential tremors of the bilateral upper extremities did not have its onset during active service and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include anxiety and PTSD, have not been met. 38 U.S.C. § 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for chronic bronchitis have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. § 3.102, 3.303 (2020). 4. The criteria for service connection for essential tremors of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. § 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2014 and May 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office. The present issues were previously before the Board. In February 2019 and June 2020, the Board remanded the claims for additional development. The case has now been returned to the Board for further appellate action. Service Connection Acquired Psychiatric Disability The Veteran contends that he has a psychiatric disability due to his military service. More specifically, the Veteran has identified three distinct occurrences during his military service that he argues caused the onset of his acquired psychiatric disability. See January 2020, VA Examination Report. The first incident described by the Veteran occurred during basic training in Fort Polk, Louisiana, with the detonation of a grenade striking a fellow service-member in his presence, causing near-fatal injuries to the other service-member. The second stressor described by the Veteran is from his service in Fort Hood, Texas, where he assisted soldiers arriving home from Vietnam and witnessed their injuries and physical deformities, which caused the Veteran emotional disturbances. The third stressor again occurred at Fort Hood while the Veteran was filling tanks with PT3 fuel and the pump malfunctioned, causing the fuel to spill all over the Veteran. Initially, the Board notes that the record reflects that the Veteran has been diagnosed with PTSD based upon the first reported stressor meeting DSM-5 criteria and the resulting symptoms. See January 2020, VA Examination Report. The second two stressors listed were found by the VA examiner to not meet the requisite criteria. The Veteran has also been diagnosed with major depressive disorder. Id. The records demonstrate that it has been medically concluded that the symptoms for the two diagnosed psychiatric disabilities cannot be distinguished. Accordingly, given the multiple diagnoses, the claim has been recharacterized as one for an acquired psychiatric disability. As to the Veteran's claimed stressor of the grenade incident during basic training, attempts were made to verify the incident, but to no avail. In a June 2021 records research response, it is detailed that a professional researcher completed comprehensive research related to the claim and requested records from the National Archives and Records Administration (NARA); however, NARA was unable to locate records for the location and date described by the Veteran. The Board notes that under these circumstances, the unavailability of records is not a definitive finding that the incident did not occur. Nevertheless, it has not been otherwise corroborated through additional evidence. For mental health disabilities other than PTSD, credible lay evidence may be sufficient to establish an in-service injury, event, or disease, as in other types of service connection claims. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007) (discussing the non-PTSD psychiatric condition claimed in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)); 38 C.F.R. § 3.303; but see Cohen v. Brown, 10 Vet. App. 128, 142 (1997) (explaining that where a psychiatric disorder claim is one for PTSD requiring service connection pursuant to the elements stated in 38 C.F.R. § 3.304(f), "a veteran's lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by credible supporting evidence." (internal quotations omitted)). Due to the varying nature of the Veteran's diagnoses, the Board will proceed with analyzing the claim as it has been recharacterized, as one for an acquired psychiatric disability as opposed to a claim solely for PTSD, as the Board finds that in this case, it provides a more favorable disposition for the Veteran. Given the confirmed diagnoses of record, the Board finds that the first element of service connection of a current disability is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, service connection turns upon whether there is evidence of an event, injury, or disease in service and, if so, evidence of a nexus between the claimed in-service disease or injury and the present disability. Id. As to the second element of service connection, the Board finds that there is credible lay evidence and supporting evidence of record to establish an in-service incident. The Veteran's military personnel records confirm his basic training assignment at Fort Polk, Louisiana in the fall of 1965. In addition, the subsequent records confirm his station at Fort Hood, Texas in the following years. The Board also notes that the Veteran has consistently and credibly reported the incident throughout his record. Taking this into consideration in evaluating the evidence supporting the Veteran's assertion of the injury incurred in this case, the Board affords the Veteran's statements great weight and finds that they are credible. Considering the evidence described above as a whole, the Board finds that the second element of an in-service event or injury is established. Shedden, 381 F.3d at 1167. Turning to the final element of service connection, the Board finds that the January 2020 VA examiner's opinion weighs in favor of granting service connection in this case. The Board is mindful that the opinion rendered therein is specific to finding that the Veteran's PTSD diagnosis is more likely than not related to his military experience. However, in reading the finding as a whole, the examiner noted the diagnoses of PTSD and major depressive disorder, noted that the symptoms could not be distinguished from one another, and found that the Veteran did not have any prior mental health disabilities nor make any finding attributing the symptoms to any experience outside of the Veteran's active service. In liberally construing the opinion provided, the Board applies it to the claim as recharacterized for an acquired psychiatric disability. When evaluating the evidence as a whole, the Board finds that the evidence for and against the claim is in balance. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Thus, resolving all reasonable doubt in favor of the Veteran, service connection for an acquired psychiatric disability, as variously diagnosed, is granted. Service Connection Obstructive Sleep Apnea The Veteran contends that he has a sleeping disorder which is related to his active duty military service, or alternatively, secondary to his acquired psychiatric disability. According to treatment records, including a private sleep study and numerous VA treatment and examination reports, the Veteran was positively diagnosed with obstructive sleep apnea (OSA) in October 2020. The Veteran has not been diagnosed with The Board, therefore, finds that the first element of service connection has been met. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As to the second requirement of an in-service injury or event, the Veteran contends that although not diagnosed until after his time in service, his obstructive sleep apnea began in service. The Veteran's service treatment records (STRs) are silent for any complaints, documented symptoms, or treatment for a sleep disorder. However, the Veteran reports that during active service, fellow service-members expressed to him that he snored loudly and stopped breathing during his sleep. See December 2020 and August 2021, VA Examination Reports. These same reports came from the Veteran's spouse following service. The Board finds that the Veteran's statements are credible, and corroborated by the third-party assertions that he has presented. Accordingly, the Board finds that the second element of an in-service incident has been met. Turning to the issue of a nexus between the in-service incidents and the current diagnosis, the record reflects that the Veteran underwent VA examinations related to his OSA in December 2020 and August 2021. As to the December 2020 examination reports, the Board finds that they are unreliable for several reasons. First, the examiner cites only to a diagnosis of OSA, but does not make a diagnosis of any other sleep disorder. Noted within the report is a remark that a sleep study is pending, however, the sleep study was completed in October 2020 and was of record at the time of the December 2020 evaluation. Second, despite only citing to a diagnosis of OSA, the examiner provided an unclear opinion that the Veteran's "separate and distinct" sleep disorders are secondary to his service-connected psychiatric disabilities. This opinion is without merit as the Veteran was not service-connected for any psychiatric disabilities at the time, and furthermore, because there are no other sleep disorder diagnoses of record. The examiner provides a rationale which discusses insomnia and PTSD, however, there is no discussion of a medical finding of insomnia. The only confirmed sleep disorder within the record is OSA. The Board finds that the August 2021 VA examination report is probative, yet not dispositive of the claim. The Veteran continued to report that his sleep disturbance began in service and continued ever since, but the examiner provided a negative nexus opinion, citing not only to the lapse in time between service and diagnosis, but also the lack of reported symptoms in service, as well as addressing that OSA is not medically related to psychiatric disabilities as it involves a distinct etiology related to the uncontrolled relaxation of the throat muscles, causing a blockage of the airways. The Veteran's lay statements and conveyance of the testimony of others concerning his symptoms beginning in service and continuing ever since weigh heavily in favor of the claim. The Board finds that these lay statements are competent and sufficient to establish a condition that existed prior to a formal diagnosis, given that the lay statements describe the symptoms that are supported by a medical professional who, as here, later diagnoses a disability. See Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran was not diagnosed with obstructive sleep apnea in service, he reports experiencing those symptoms in service and that those symptoms were observed by his fellow service-members and spouse during active service and thereafter. These are the same symptoms which were later reported and led to his 2020 diagnosis of obstructive sleep apnea. Considering the lay statements of the Veteran's symptoms experienced in service later diagnosed as obstructive sleep apnea, the Veteran's current medical records, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's obstructive sleep apnea had its onset in service. Accordingly, the Board finds that service connection is warranted. 38 C.F.R. § 3.102. Service Connection Chronic Bronchitis The Veteran asserts that his diagnosed chronic bronchitis is a result of his active service, specifically, as a result of asbestos exposure during service from demolishing old barracks at Fort Still. STRs do not show any complaints of, treatment for, or diagnosis of chronic bronchitis or similar symptoms during active service. Private treatment records confirm a diagnosis of chronic bronchitis as early as May 1999. A December 2020 VA examination report confirmed a continuing diagnosis of the condition based upon imaging studies of the chest and lungs, which showed mild inflammation. The Veteran reports that he began experiencing consistent coughing after leaving active service and believes that it is due to exposure to asbestos. See December 2020, VA Examination Report. However, as detailed within the VA examination report, imaging studies do not reflect the presence of asbestosis. The examiner opined that it is less likely than not that the Veteran's chronic bronchitis was incurred in or caused by the claimed in-service injury, event, or illness, as the medical evidence does not support such a correlation between the two. The Board notes that bronchitis is not among the medically known disabilities associated with asbestos exposure. While laypersons are competent to report observable symptoms, the Veteran is not competent to provide a diagnosis or medical opinion as to issues of complex medical etiology which requires medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Board appreciates the Veteran's assertions in this regard, they do not provide probative evidence in support of the claim. The Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for chronic bronchitis is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Essential Tremors of the Bilateral Upper Extremities The Veteran maintains that the diagnosed tremors of his hands are related to his active service as a result of his handling of missiles and weapons during service. The Board notes that the Veteran has been diagnosed with severe essential tremors of his hands, with private treatment records as well as recent VA examination reports confirming such a diagnosis. As to an in-service injury, the Board notes that the Veteran's routine duties during his service would have included handling firearms and weaponry. To the extent that the Veteran has claimed that his disability results from such use, the Board takes judicial notice of the fact that such use would have been a part of his active-service requirements. Throughout the record, the Veteran has consistently and repeatedly reported the onset of experiencing tremors in his hands after his separation from service. Indeed, STRs are silent for any such notation from physical examination or from the Veteran's personal reporting. In support of his claim, the Veteran has submitted several written lay statements from service-members whom he met after his separation and during his following years in college. Each of those statements attests to observing the tremors in the Veteran's hands. One statement was submitted by a service-member who served along-side the Veteran in active service from 1965. That statement also reflects that the individual observed the Veteran's tremors upon separation from service. While the Board finds that this evidence supports the claim, it does not establish a nexus between the Veteran's disability and his reported in-service injury. The most probative evidence of record addressing that issue is found in the December 2020 VA examination report. The examiner opined that it is less likely than not that the Veteran's diagnosed disability is related to his active service. In providing the negative opinion, the examiner explained that the claimed injury would not result in tremors of the hands, as essential tremors is a neurological disorder that is primarily associated with a genetic etiology and referred to as "familial" tremors. The Board finds that this opinion provides a medically based rationale and is based upon consideration of the evidence of record, including the Veteran's statements and supporting evidence. Although the Board understands the Veteran's vehement assertions concerning the etiology of his disability, he does not have the medical expertise or training to provide a probative opinion as to complex medical issues, such as the etiology of his disability. The Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for essential tremors of the bilateral upper extremities is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, Associate 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.