Citation Nr: 21077170 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-38 747 DATE: December 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT An acquired psychiatric disorder, to include PTSD, was not documented during active duty service, nor was a psychosis shown within one year of separation from service, and the weight of the evidence is against finding a nexus between a post-service diagnosis of any psychiatric disorder and service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from September 1994 to September 1998. In August 2018, the Board, in pertinent part, remanded the appeal for additional development, which has been completed. In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including psychosis and hypertension, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder including PTSD The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to a veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of a veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Fear of hostile military or terrorist activity means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of this section, VA shall request verification of service from a service department. 38 C.F.R. § 3.203. The United States Court of Appeals for Veterans Claims (Court) has held that a service department determination as to an individual's service shall be binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). The Veteran does not allege that he engaged in combat or that his stressor to support a diagnosis of PTSD is combat-related. Rather, he asserts that he developed PTSD because service in the military was stressful. His statements regarding this issue are, at best, generalized. Service treatment records are entirely negative for complaints, treatment or diagnosis of a psychiatric disorder. On separation from service in June 1998, no mental health impairment was reported and in a report of medical history, the Veteran denied a history of depression or excessive worry, or nervous trouble of any sort. At this point, it is the Veteran himself that provides evidence against his own claim. After service, records in 2014 noted positive PTSD screenings. While some subsequent treatment records list PTSD, along with other mental health disorders, as part of the Veteran's problem list, there is no evidence to explain whether the DSM criteria were met to support the diagnosis of PTSD or the stressor/s on which the diagnosis is based. At the outset, the Board points out that the weight of the evidence is against a finding that the Veteran meets the criteria for a DSM diagnosis of PTSD. While the Veteran is competent to attest to his in-service experiences and observable symptoms, in light of the evidence discussed immediately above, assuming, without conceding, that the Veteran has PTSD, the evidence weighs against the claim. To the extent clinicians have noted PTSD, there is no credible evidence linking the assessment of PTSD to traumatic events in service. As the record is absent a finding of PTSD related to an in-service stressor, service connection is not warranted for PTSD. With regard to the Veteran's claim for service connection for an acquired psychiatric disability other than PTSD, treatment records after 2014 show treatment for a psychiatric disorder, to include generalized anxiety disorder. A March 2014 VA treatment record noted symptoms of PTSD associated with trauma from his brother's suicide in 2003, as well as the unexpected death of his father. It is important to note that the above is not consistent with statement of the Veteran regarding the cause of this problem. This multi-year gap between reports of mental health problems and service is one factor, among others, weighing against a finding of continual symptoms since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. To the extent the Veteran asserts that that his psychiatric disorder had onset and continued since service, the contemporaneous medical evidence does not support his contentions. There are no complaints of mental health problems reflected in service or until many years after service, and hence no continuity or chronicity. The Court has determined the Board may properly assign more probative value to lay statements in contemporaneous medical records than subsequent statements made for compensation purposes. Accordingly, the Board finds the Veteran's contemporaneous medical records that fail to show any complaints of psychiatric symptoms until more than a decade after service more probative than his statements that he had experienced mental health problems since service made in the course of filing a claim for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007). In this regard, it is important for the Veteran to understand that the service and post-service treatment records provide particularly negative evidence against this case that the Board cannot ignore, indicating a problem that is simply not related to the Veteran's service more than 20 years ago. A VA examination or medical opinion regarding the etiology of his currently diagnosed psychiatric disorder is not indicated as there is no suggestion that the Veteran's current disorder may be associated with service. Again, there is no competent evidence of an acquired psychiatric disorder in service or within one year following discharge from service. In fact, treatment records after 2014 associate the Veteran's mental health problems with trauma from his brother's suicide in 2003, and other situational stressors, including relationship and financial problems. Moreover, there is no competent and probative evidence to show that the Veteran was diagnosed and/or treated for an acquired psychiatric disorder, during or contemporaneous with service and no competent and probative evidence that his current disorder is related to his service. On this record, there is no basis to grant the claim. As a result, on this record, any medical opinion would not provide a basis to grant this claim. The facts of this case, and some of the Veteran's own prior statements, provide highly probative evidence against this claim. No in-service stressor has been identified, much less confirmed. In fact, other post-service stressors are cited (at some points by the Veteran himself) as the cause of this problem. A detailed review of the post-service treatment record provides particularly negative evidence against this claim. The Veteran has also been diagnosed with alcohol abuse. The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301 (c)(3). An injury or disease incurred during active service shall not be deemed to have been incurred in the line of duty if such injury or disease was the result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301 (d). Direct service connection may be granted only when a disability was incurred in the line of duty, and not the result of a Veteran's own willful misconduct, or for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301 (a). There is no indication that the substance abuse is secondary to, or as a symptom of a service-connected disorder. See Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001). The Veteran's diagnosed alcohol abuse cannot be service-connected. In sum, a psychiatric disorder was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the Veteran has a diagnosed psychiatric disorder that is causally related to service. Accordingly, the preponderance of the evidence is against the claim, and it is denied. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. The Veteran seeks service connection for OSA. He asserts the condition had onset in service, to include as due to a nose fracture incurred therein. During the September 2021 Board hearing, the Veteran's attorney asserted that the Veteran's OSA was due to a nose fracture incurred in service. In support of the claim, the attorney provided an article titled prevalence of obstructive sleep apnea in male patients with surgically treated maxillary and zygomatic fractures. The service treatment records show that the Veteran was seen in March 1997 for a possible nose fracture following a nose injury incurred while wrestling. Examination was negative for septal hematoma or visible deformity. An assessment of probable nose fracture, resolving, was noted. No imaging studies were obtained. After service, a March 2014 clinical treatment note reported possible sleep apnea. The Veteran stated that his fiancée witnessed loud snoring and apneic episodes. He also described daytime fatigue. A July 2014 polysomnogram revealed mild OSA. A VA examiner in February 2020, opined that the Veteran's OSA less likely as not had its onset during the Veteran's, nor was it otherwise related to any event or injury during his service. The examiner explained that a sleep study was needed to diagnose OSA. Here, there was no medical evidence of OSA during or proximate to military service, or until a sleep study in 2014. The examiner did not address the Veteran's contentions that his current OSA is due to a possible nose fracture documented in his service treatment records. Thus, the Board finds that a remand is necessary to obtain an adequate addendum opinion addressing this matter. The Board notes that although VA medical examiners are generally presumed competent, once an appellant raises a challenge to that competency, VA must satisfy its burden of persuasion as to the examiner's qualifications. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). The record is without sufficient evidence for the Board to make a determination as to the competency and qualifications of the examiner who provided the February 2020 opinion. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Provide the Veteran with the February 2020 medical examiner's curriculum vitae (CV), including credentials for all training completed for purposes of conducting VA examinations. Associate these records with the Veteran's claims file. All efforts to obtain such records should be documented in the claims folder. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. Submit the claims file to the February 2020 VA examiner, if available, for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The qualifications (i.e., the CV) of the clinician who provides the requested medical opinion should be documented in the file. The claims file, including a copy of this remand, should be made available to the examiner, who should indicate a review of the file in the examination report. Examination of the Veteran is not required unless the examiner determines that one is necessary to provide a reliable opinion. If an examination is required, all indicated tests and studies should be completed. The examiner is asked to determine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's OSA had onset in, or is otherwise related to, the Veteran's military service, to include the documented March 1997 possible nose fracture. In rendering such opinion, the examiner must address the Veteran's specific lay statements regarding the onset, history, and etiology of his associated symptomatology. The examiner is also asked to address the submitted internet medical research, provided by the Veteran's attorney. A complete rationale should be provided for any opinion offered. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.