Citation Nr: 21075390 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 20-20 780 DATE: December 20, 2021 ORDER The application to reopen the claim of service connection for posttraumatic stress disorder (PTSD) is granted. The application to reopen the claim of service connection for sleep apnea is granted. Service connection for an acquired psychiatric disorder, to include chronic PTSD, an unspecified major depressive disorder, and a generalized anxiety disorder, is granted. Service connection for sleep apnea is granted. FINDINGS OF FACT 1. In an October 2014 decision, the agency of original jurisdiction (AOJ) denied service connection for PTSD on the basis there was no medical evidence of a diagnosed disability related to service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received in that year. 2. In an October 2014 decision, the AOJ denied service connection for sleep apnea on the basis there was no medical evidence of a diagnosed disability of sleep apnea related to service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received in that year. 3. Resolving reasonable doubt in the Veteran's favor, the weight of the evidence supports the finding his PTSD is due to fear of hostile military or terrorist activity during his active-duty service. 4. Resolving reasonable doubt in his favor, the Veteran has a current diagnosis of sleep apnea that was incurred in or related to his active duty. CONCLUSIONS OF LAW 1. The October 2014 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The October 2014 rating decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52, 20.1103. 4. New and material evidence has been received to reopen the claim of service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for PTSD, as due to a fear of hostile military or terrorist activity, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. Sleep apnea was incurred during the Veteran's or related to his active-duty service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 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 May 1976 to June 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a October 2018 and December 2018 rating decisions. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) at an October 2021 Board hearing. A complete transcript is of record. The Board notes the December 2018 rating decision denied entitlement to service connection for PTSD. Inasmuch as the evidence of record reflects multiple psychiatric diagnoses, the Board has recharacterized the claim as one for service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a service connection claim for a specific psychiatric entity encompasses all psychiatric diagnoses shown by the record). New and Material Evidence To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding there is a "low threshold" for reopening). To establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed unless it is inherently false or untrue or if the statement or assertion is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The application to reopen the claim of service connection for PTSD is granted. 2. The application to reopen the claim of service connection for sleep apnea is granted. The Veteran petitions to reopen his previously denied service connection claims for PTSD and sleep apnea. For the following reasons, the Board finds reopening is warranted. Service connection for PTSD and service connection for sleep apnea were previously denied in an October 2014 rating decision because there was no medical evidence of diagnosed disabilities related to service. The Veteran was notified of the October 2014 decision and his appellate rights in a letter dated October 14, 2014, but he did not initiate an appeal within one year of notification of the decision. Also, new and material evidence was not received within that year. Accordingly, the October 2014 rating decision is final. See 38 U.S.C. § 7105 (c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156 (a)-(b), 19.52 (a), 20.1103. Since the October 2014 rating decision, the record reflects medical evidence showing diagnoses of PTSD and sleep apnea. The Board finds the evidence is not cumulative or redundant of the evidence previously of record, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. See 38 C.F.R. § 3.156 (a). As noted above, the credibility of the evidence is also presumed. The evidence is, therefore, new and material, and the claims of service connection for PTSD and service connection for sleep apnea are reopened. Service Connection Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish service connection, the following must be shown: (1) the existence of a present disability; (2) an 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). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303 (a). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, of the American Psychiatric Association. 38 C.F.R. §§ 3.304 (f), 4.125 (a). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD varies depending upon whether a Veteran engaged in combat with the enemy during service, whether the claimed stressor is a personal assault, and whether the claim is based on fear of a hostile military or terrorist act during service. 38 C.F.R. § 3.304 (f); Gaines v. West, 11 Vet. App. 353 (1998). If VA determines a Veteran engaged in combat with the enemy and the alleged stressor is combat-related, then the Veteran's lay testimony or statement can be accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, if testimony is found to be satisfactory, credible, and consistent with circumstances, conditions, or hardships of combat service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(1); Zarycki v. Brown, 6 Vet. App. 91 (1993). When service connection for PTSD is claimed based upon a personal assault during service, other considerations apply. 38 C.F.R. § 3.304 (f)(5). However, if the alleged stressor is not combat-or personal assault-related, then the Veteran's lay testimony, in and of itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). Here, the Veteran did not engage in combat with the enemy during service and he has not alleged he has PTSD as the result of any personal assault during service. Therefore, the Board finds those provisions do not apply, and his statements and testimony must be corroborated by additional evidence. Lay evidence may also establish an alleged stressor where: (1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; (2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor; (3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and (4) there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304 (f)(3). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 3. Service connection for an acquired psychiatric disorder, to include chronic PTSD, an unspecified major depressive disorder, and a generalized anxiety disorder, is granted. While stationed in Germany working as a tower guard at a nuclear weapons facility, the Veteran asserts he experienced a traumatic event. See October 2021 Board Hearing Transcript. Turning to the evidence of record, in November 2016, a VA psychologist documented the Veteran's reported trauma: "In Germany, when I was on duty and someone step into my clear zone, terrorism was so bad then, it really made me uncomfortable." Based on this information, the examiner determined the "Veteran's score ... is suggestive of likely PTSD" because his score was just below the cutoff. In March 2020, the Veteran's primary care physician noted the Veteran was under his care, and the medical records reflect a diagnosis of PTSD. They state the Veteran's condition is likely related to his active military service. In May 2020, a licensed mental health counselor diagnosed the Veteran with a recurrent major depressive disorder with psychotic features and a generalized anxiety disorder with panic attacks. They attributed the Veteran's psychiatric condition to near friendly fire. The Veteran was afforded a VA examination in April 2021 and was diagnosed with chronic PTSD. The examiner indicated the Veteran's stressor met the criteria to support a diagnosis of PTSD; however, they also found the stressor was unrelated to a fear of hostile military or terrorist activity. Instead, they found it was related to an incident of near-friendly fire. Furthermore, a second stressor was noted. A few months prior to his scheduled discharge, the Veteran was aboard a Chinook helicopter flight, and the aircraft began losing altitude. The Veteran and others onboard feared for their lives, and the incident lasted for about 15 minutes until the pilot was able to regain altitude. Furthermore, the examiner found the Veteran's depressive and anxiety symptoms are subsumed by his PTSD. At his October 2021 Board hearing, the Veteran testified he was stationed in Germany. He explained he worked as a tower guard at a nuclear weapons facility, which was considered at high risk of an attack. As a result, the Veteran testified he experienced sleep problems because he feared hostile military or terrorist activity. He further recalled an incident within the "clear zone." A friend had walked into an area of the clear zone located in front of the Veteran's guard tower. He recalled how soldiers would use a wooded area as a short cut to and from the facility into town, and on this occasion, while coming from the wooded area, the Veteran's friend had accidently wondered into the clear zone. The Veteran was ordered to shoot; however, he eventually recognized his friend and did not shoot. The Board acknowledges the opinions and evidence regarding whether the Veteran's stressors are related to his psychiatric condition. The April 2021 VA examiner found the Veteran's stressors were related to an incident of near-friendly fire and an in-flight incident. The VA examiner also found the Veteran's stressors contributed to his PTSD diagnosis. Likewise, in May 2020, a licensed mental health counselor attributed the Veteran's psychiatric condition to having nearly been forced to shoot and kill a fellow military policeman. The Board observes, to date, the Veteran's stressors are unverified. Though, given the Veteran's testimony, the Board construes the Veteran's service-connection claim for PTSD to also be based on a fear of hostile military or terrorist activity. Here, the Veteran testified he was fearful of hostile military activity because he guarded a nuclear weapons facility where an attack could reasonably be expected to occur. See October 2021 Board Hearing Transcript. As a result, the Board resolves reasonable doubt in favor of the Veteran and finds his PTSD is based on a fear of hostile military or terrorist activity. The Board recognizes the Veteran's claimed stressor because it is consistent with the facts and circumstances of service while in Germany during a time when the country was divided into the East and West. 38 C.F.R. § 3.304 (f)(3). Military personnel records received in June 2014 show he was stationed in Germany from September 1976 until November 1978 as a military policeman, which supports his testimony. The Veteran's service personnel records corroborate his contention he was placed in situations that would reasonably result in fear of hostile military or terrorist activity. Additionally, in November 2016, a VA psychologist documented the Veteran reported being fearful of terrorism while he worked as a watchtower guard at a nuclear facility, and based on this report, the examiner determined the "Veteran's score ... is suggestive of likely PTSD" as his score was just below the cutoff. Given his score was just below the cutoff and he was eventually diagnosed with chronic PTSD, the Board will resolve reasonable doubt in favor of the Veteran as to whether the claimed stressor of fear of hostile military or terrorist activity was adequate at that time to support a diagnosis of PTSD. Thus, the Board finds the criteria for service connection for PTSD is warranted. A treating psychologist has confirmed the claimed stressor of fear of hostile military or terrorist activity is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor. Further, the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service in Germany, and there is an absence of clear and convincing evidence to the contrary. As such, the Veteran's lay testimony, alone, has established the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). The Board finds his statements to be credible and resolves reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107 (b); Gilbert, supra. Accordingly, service connection for PTSD is granted. 4. Service connection for sleep apnea is granted. The Board finds after reviewing all the evidence of record, there is adequate medical and lay evidence to establish the Veteran's sleep apnea had its onset during his active-duty service or is related to his active-duty service. The Veteran received a VA examination in October 2018. The examiner noted a diagnosis of obstructive sleep apnea. The examiner further noted in the report the Veteran indicated his condition had begun in 1977 during active service with symptoms of a difficulty with sleeping and loud snoring. In addition to the examination, the VA also obtained an etiological opinion in October 2018. The examiner determined the claimed condition was less likely than not related to the Veteran's active-duty service. For their supporting rationale, the examiner stated there are no medical records showing a diagnosis or treatment for sleep apnea during active duty. In March 2020, the Veteran's primary care physician found the Veteran's obstructive sleep apnea is at least as likely related to his in-service sleep complaints. The physician further stated due to an inadequate sleep pattern and a difficulty resting due to apnea, his PTSD sleep apnea causes the Veteran fatigue. In December 2020, a private opinion states the Veteran came into the military with symptoms of sleep apnea. Regarding this, the Veteran claimed he had sleep issues before entering the military, and his snoring worsened with active service. The examiner noted the Veteran's disturbed sleep cycle from his in-service work caused his symptoms to worsen, which continued after service. Thus, the examiner found, due to the Veteran's military occupational specialty as a tower guard in the military, it is at least as likely as not the Veteran's disturbed sleep worsened beyond its normal progression. For their rationale, the examiner noted the Veteran served as a tower guard, which impaired his sleep. They note sleep impairment in shift workers is primarily the result of circadian rhythm misalignment with the daily cycles of light and dark, and shift workers often work when the circadian rhythms promote sleep and attempt sleep during the day when the circadian rhythms promote wakefulness. During these daytime sleep periods, shift workers may have trouble initiating and maintaining sleep, resulting in both reduced sleep quality and quantity. They further noted sleep impairment in patients with obstructive sleep apnea is a consequence of repeated episodes of upper airway collapse during sleep. They provided supporting evidence in the form of a discussion of data and scientific studies. Another VA etiological opinion was obtained in December 2020. In providing support for their negative opinion, the examiner noted the Veteran's service medical records are silent for a diagnosis of obstructive sleep apnea during active-duty service. At his October 2021 Board hearing, the Veteran testified he believes his sleep apnea is related to his active service because as a tower watchguard, with unusual hours, he experienced a disturbance to his circadian rhythm. He also reported sleep-related symptoms. The Board finds the October 2018 and December 2020 VA medical opinions for direct service connection to be inadequate because the sole rationale is based on an absence of in-service treatment or diagnosis, and they do not address the Veteran's testimony that he experienced sleep problems during active service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The favorable evidence of record relevant to the foregoing question includes lay statements and two private medical opinions. Specifically, in October 2021, the Veteran testified competently and credibly his symptoms of snoring and daytime somnolence began during service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "lay evidence can be competent and sufficient to establish a diagnosis of a condition when... lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."). Furthermore, in March 2020, a private physician opined it is at least as likely the Veteran's currently diagnosed sleep apnea is related to his in-service sleep-related symptoms. They also state the Veteran's PTSD aggravates his obstructive sleep apnea symptoms. When weighed against the evidence just discussed, the unfavorable evidence of record does not preponderate against the Veteran's claim. In that regard, the Board first acknowledges a diagnosis of sleep apnea and complaints such as daytime tiredness or a difficulty sleeping are not documented in the Veteran's service treatment records. However, the Veteran has credibly explained he experienced problems with sleep during active service. The Board next acknowledges, in October 2018 and December 2020, VA physicians concluded the Veteran's sleep apnea was less likely than not incurred in or caused by service, because there was no objective evidence of that condition in his service medical records. However, as noted above, the physicians did not acknowledge and discuss the lay statements of record and did not suggest the reported in-service symptoms were unrelated to sleep apnea, and they disregarded that evidence when reaching their conclusion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Thus, both opinions lack probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Finally, the Board acknowledges the evidence of record raises a possibility the Veteran's sleep apnea existed prior to service. However, sleep apnea or its symptoms were not noted on the Veteran's September 1975 service entrance examination. Furthermore, a VA examiner noted in December 2020 there is no documented evidence of a sleep apnea prior to active-duty service. As the only evidence suggesting the Veteran's sleep apnea preexisted service is the December 2020 private physician's statement based on the Veteran's belief he had sleep apnea before service, the onerous "clear and unmistakable" evidentiary standard required to rebut the presumption of soundness has not been met in this instance, and the Veteran is presumed sound upon entrance into service for purposes of this decision. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1095-96 (Fed. Cir. 2004). While the Veteran is competent to report sleep apnea symptoms such as heavy snoring and excessive daytime sleepiness, he is not competent to provide a diagnosis of OSA or an opinion linking his current diagnosis to his active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, supra. Therefore, the Veteran is not competent to provide a diagnosis or an etiology opinion as to whether he had obstructive sleep apnea prior to his active service. Here, the medical evidence is at least in equipoise as to whether the Veteran's credibly reported sleep-related symptoms during service were obstructive sleep apnea. Even if the Veteran's obstructive sleep apnea existed prior to service, the December 2020 examiner opined the Veteran's sleep patterns worsened beyond normal progression due to his military occupational specialty. Weighing all the available evidence, the Board finds it is at least in equipoise as to whether the Veteran's currently diagnosed obstructive sleep apnea is somehow related to his active service. (Continued on the next page) In short, the Board acknowledges the March 2020 and December 2020 private medical opinions are not flawless. However, those opinions, when viewed in the context of the other evidence, are sufficient, taken together, to decide the Veteran's claim, particularly since the only other medical opinions of record lack probative value. 38 C.F.R. § 3.159(c)(4); see also Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not seek an additional medical opinion where favorable evidence in the record is unrefuted, and it is not permissible to undertake further development if the purpose is to obtain evidence against an appellant's claim). Thus, considering the competent and credible lay statements of record and the conclusion of the private physician regarding the cause of the Veteran's reported in-service symptoms, the Board finds the evidence that addresses whether his currently diagnosed obstructive sleep apnea was incurred in service is at least in equipoise. Accordingly, the benefit of the doubt rule will be applied, and service connection for obstructive sleep apnea is granted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (d). P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.