Citation Nr: A21020656 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200525-89373 DATE: December 29, 2021 ORDER Service connection for psychiatric disorder is granted. Service connection for sleep disorder is denied. FINDINGS OF FACT 1. The Veteran's has a psychiatric disorder related to service 2. The Veteran's has sleep apnea is not secondary to the service-connected psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for psychiatric disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea, on a secondary basis, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to April 1989. A rating decision was issued under the legacy system in March 2018 and the Veteran submitted a timely notice of disagreement in March 2019. In March 2020, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a May 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the March 2020 SOC. Therefore, the March 2020 SOC is the decision on appeal. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 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 posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis 1. Service connection for psychiatric disorder. The Veteran contends that his psychiatric disorder is related to an in-service event. In a November 2017 correspondence, the Veteran reported that while in Zweibrucken Air Force Base (AFB) in Germany he was in a van when about 8 other fellow service members pulled his pants down and "tried to moon" him. Furthermore, he reported that the other servicemembers were physically attacking and restraining the legs and arms to prevent the Veteran from defending himself. The Veteran reported that such act was called an "initiation" which he never reported due to threats from the other service members. In the Veteran's spouse's correspondence, she reported that the Veteran experiences change in moods, irritability, depression, and avoids crowded venues. Additionally, she reported that the Veteran does not sleep well, wakes up sweating, shaking, screaming, swinging, and experiences nightmares. The Veteran's service personnel records (SPRs) show that he was a crew chief and was assigned to Zweibrucken AFB in Germany from October 1984 to April 1989. His service treatment records (STRs) show that he was treated for finger and foot injuries, alcohol and drug abuse, and gastronomical disorders. They also show that the Veteran underwent mental health evaluations for alcohol abuse in July 1987 in which the treating clinical psychologist found no diagnosis for mental disorders. The Veteran's February 1989 separation examination was marked normal for psychiatric. In 2010 and 2011, the Veteran denied depression symptoms. In the January 2013, May 2013, May 2014, May 2015, July 2015, August 2016, and December 2016 depression screenings, the attending physicians found the Veteran negative for depression. In December 2015 and February 2016, the Veteran reported that joint pain interfered with his sleep. The Veteran denied depression symptoms until 2017. In a November 2017 mental health evaluation, the attending psychiatrist found that the Veteran was experiencing moderately severe depression. The Veteran reported that his depression and anxiety were related "to multiple traumas" while in service. The psychiatrist diagnosed the Veteran with "unspecified adjustment disorder." Also, the psychiatrist noted that the Veteran's psychological stressor was "financial." During a mental health consult in February 2018, the Veteran reported experiencing depression and anxiety which he attributed to in-service military sexual trauma (MST). The attending physician diagnosed the Veteran with "adjustment disorder r/o Other Trauma-or Stressor-related Disorder, r/o MDD," noting the psychological stressor to be "financial." In February 2018, the Veteran was afforded an examination for the psychiatric claim. The Veteran reported depressive mood, anxiety, mild memory loss, and disturbances of motivation and mood. The psychologist reviewed the claims file. The psychologist diagnosed the Veteran with "Unspecified Depressive Disorder." The psychologist opined that the Veteran's disorder was less likely than not related to an in-service injury, event, or illness. She reported that the Veteran sought out mental health treatment for the first time in 2015 related to sleep, later diagnosed as sleep apnea, and then again in 2017, many years post-service. Also, the psychologist noted that Veteran has never been diagnosed with PTSD by a mental health provider. She referenced the primary care and health psychology notes from 2010 and 2015 which showed "negative PTSD screeners." Also, according to the examiner, the Veteran's STRs indicated a history of significant alcohol use and associated treatment. The psychologist found that Veteran's mental health symptoms began around the same time his mother passed away, 2-3 years ago. Furthermore, the psychologist remarked that the Veteran's symptoms seem related to the loss of his mother who was significant source of support in his life. In March 2020, the Veteran was afforded another VA examination. The Veteran reported experiencing anxiety symptoms. The psychologist found that the Veteran's psychiatric disorder is at least as likely as not "supported by and consistent with the in-service marker evidence." She also found that the Veteran has "a mental condition formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or so require medication." In this regard the psychologist reported that the Veteran was diagnosed with PTSD related to MST. Furthermore, the psychologist noted that during the examination, the Veteran reported a consistent report of sexual assault indicated in treatment notes and with a prior examiner. The psychologist found that the Veteran endorsed intrusive thoughts, nightmares, anhedonia, guilt, anger, and sleep impairment and thus met the criteria for other specified trauma disorder (subclinical PTSD) related to his report of MST. Based on the report of the Veteran and the evidence in the file, the psychologist concluded that "the current other specified trauma (subclinical PTSD) diagnosis is at least as likely as not (50 percent or greater probability) caused by or a result of the in-service MST-related marker(s)." The Board finds that service connection for the Veteran's psychiatric disorder is warranted. Collectively, the evidence tends to indicate that the Veteran's disorder most likely began during service. The Board notes that the Veteran is competent to report the circumstances of the assault he experienced in service because they are based on his own direct observations. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, the Board finds these statements to be credible. First, the Veteran has reported a consistent history of the in-service stressor in describing the stressor throughout the period on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Second, the STRs show he was given substance abuse treatment and was involved in a domestic violence situation, which resulted in disciplinary action and discharge. These events appear to have developed after he was assaulted, which could be an indication of a behavior change resulting from the stressor event. The Board finds that the March 2020 VA examiner's positive nexus opinion, persuasive as to the existence of the Veteran's stressor. In this regard, the Veteran has been diagnosed by VA psychologists with a psychiatric disorder based on examinations and diagnostic testing. The Board acknowledges that the February 2018 VA examination concluded the Veteran's psychiatric disorder was not related to service; however, other records to include the November 2017 mental health evaluation, the February mental health consult, and the March 2020 VA examination reflected the Veteran's disorder is related to service. The March 2020 examiner explained that her conclusions were based on examinations of the Veteran and the medical records. The Board finds the evidence tends corroborates the Veteran's stressor. Lastly, the evidence links the current symptoms to service. When reviewing the medical opinion against the claim, in association with the medical records, the Board also finds the Veteran's lay statements competent and credible. In sum, the Board finds that the evidence of record is at least in relative equipoise. That is, there is at least an approximate balance of evidence both for and against the actual occurrence of the in-service stressor. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. After resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has psychiatric disorder caused by service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for psychiatric disorder. 2. Service connection for sleep apnea. The Veteran contends that his sleep apnea is caused by or aggravated by his psychiatric disorder. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. The evidence confirms a current diagnosis of sleep apnea. This diagnosis was made by VA in January 2017. There is no probative indication that this diagnosis is secondary to the service-connected PTSD. To this end, a February 2018 VA examination for the Veteran's psychiatric disorder listed obstructive sleep apnea as a medical diagnosis relevant to the understanding or management of the Veteran's psychiatric disorder. Also, the examiner remarked in her rationale that when the Veteran was seeking mental health treatment, involving sleep issues in 2015 and in 2017, he was diagnosed with sleep apnea along with unspecified depressive disorder. This examiner's report does not identify a secondary relationship between sleep apnea and the psychiatric disability. Even if it did, it does not indicate in which direction the relationship ran. At best, the examination indicates a potential correlation. A correlation between a service-connected disability and a secondary condition is not sufficient evidence to establish secondary service connection as a causation or aggravation relationship is required. A mutual relationship or some degree of correspondence that is not based on causation or aggravation is not sufficient to meet the requirements of § 3.310. Harvey v. Shulkin, 30 Vet. App. 10, 20 (2018) The Veteran believes his sleep apnea is secondary to the service-connected psychiatric disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the potential risk factors for sleep apnea, including psychiatric conditions, plus the ability to interpret these factors in the context of his multiple medical conditions. This is not a matter within the range of common knowledge and experience. It is outside the competence of the Veteran in this case to identify a potential nexus because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). A VA examination has not been conducted. However, a VA examination is not warranted based only on the Veteran's own conclusory, generalized statements, where there is no other supporting evidence in the record. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); Euzebio v. Wilkie, 31 Vet. App. 394 (2019); cf Colantonio v. Shinseki, 606 F.3d 1378, 1381-82 (Fed. Cir. 2010). (Continued on the next page) Consequently, the evidence is not in equipoise as to the claim, and the claim is denied. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.