Citation Nr: 21005485 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-16 412 DATE: February 1, 2021 ORDER Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder, anxiety disorder, affective disorder, and polysubstance dependence, is denied. Entitlement to service connection for obstructive sleep apnea (sleep apnea) is denied. Entitlement to service connection for residuals of traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a left foot disability that is etiologically related to service. 2. The Veteran’s acquired psychiatric disability did not manifest during service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 3. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of sleep apnea that is etiologically related to service. 4. The Veteran’s residuals of TBI did not manifest during service and are not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for residuals of TBI have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 2003 to August 2003. The Veteran had additional service from August 2004 to October 2012 but was discharged under other than honorable conditions. An administrative decision in March 2016 ruled that this period is deemed dishonorable for VA purposes and is, therefore, a bar to VA benefits. See March 2016 Administrative Decision. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in May 2017, the Board remanded the issues on appeal to schedule a hearing for the Veteran. The Veteran was scheduled for a hearing in January 2018. See December 2017 Correspondence. The Veteran failed to appear for his scheduled hearing and did not present a good cause for his absence. As such, the Board finds that the Veteran’s hearing request has been abandoned. In July 2018, the Board remanded the issues on appeal as a statement of the case was not issued addressing whether the Veteran’s character of discharge serves as a bar to VA benefits. In December 2019, the Board again remanded the issues on appeal as it was unclear as to whether the Veteran and his representative received the February 2019 statement of the case (SOC) and April 2019 supplemental statement of the case (SSOC). The Board finds that all pertinent SOCs and SSOCs were sent to the Veteran and his representative. The Board notes that despite numerous attempts to contact the Veteran at his phone number(s) and address(es) of record, to include on April 27, 2020; April 30, 2020; and June 9, 2020; the Veteran failed to respond. See April 2020 VA 21-0820 Report of General Information records and June 2020 VA 21-0820 Report of General Information. These letters as well as all correspondence sent to the Veteran since February 2018 have been returned to VA as undeliverable. When attempting to contact the Veteran via the phone numbers provided, there was either no answer or the message “user not accepting phone calls at this time.” The Veteran’s representative, who is a family member, also has been unable to contact the Veteran. Curiously, April 2020 VA treatment records reflect that the Veteran reported to the emergency department to refill his medication, Trazodone. He was referred to the pharmacy department. Thus, the Board concludes that the Veteran appears to still be in the New Orleans area, as he went to the VAMC in New Orleans. However, he has not kept VA apprised of his current contact information, as various addresses have been tried, with all correspondence either returned as undeliverable or not answered. Based on the forgoing, the Board concludes that VA has undertaken reasonable efforts to contact and assist the Veteran. Additionally, correspondence has been sent to his representative, none of which has been returned to VA. The Board will continue to adjudicate the appeal based on the current evidence of record. See generally 38 C.F.R. § 3.158. Service Connection Generally, to establish service connection a veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for sleep apnea is denied. The Veteran claimed that his sleep apnea manifested due to his non-service-connected PTSD. However, as the Veteran is not service-connected for PTSD or any other psychiatric disability, the Board will determine if the Veteran’s sleep apnea is etiologically related to service. See June 2012 Informal Claims. Based on a review of the record, the Board finds that the Veteran does not meet the criteria for service connection for sleep apnea as the preponderance of the evidence supports a finding that there is no current disability. Regarding the first element of service connection (a current disability), the medical evidence does not reflect a diagnosis of sleep apnea. The service treatment records are silent as to any sleep troubles or sleep-related symptoms. In fact, the Veteran never underwent a sleep study and was never provisionally or formally diagnosed with sleep apnea. The Board notes that in June 2008 (during the Veteran’s dishonorable period), the Veteran complained of having problems sleeping and feeling tired after sleeping. See June 2015 STR – Reserve STR. In an October 2009 STR, the Veteran was diagnosed with primary insomnia. See June 2015 STR – Reserve STR. The Veteran continued to complain of decreased sleep in an October 2012 VA treatment record. See April 2015 CAPRI. The Board finds that all the in-service reports of sleep-related disability were during the period that is barred from VA benefits. As the service treatment records and the Veteran’s statements do not show any complaints or endorsement of a sleep-related disability prior to 2004 the Board finds that there is no in-service sleep-related event or injury. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for sleep apnea but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran’s active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Board finds that there is no competent evidence of a current diagnosis of sleep apnea or sleep-related symptoms prior to 2004. For these reasons, the Board finds a VA medical opinion is not necessary to decide the claim of service connection for sleep apnea. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, however, as noted above, the evidence does not establish that the Veteran has been diagnosed with sleep apnea. In the absence of a current disability, the analysis ends, and the claim for service connection for sleep apnea cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 2. Entitlement to service connection for a left foot disability is denied. The Veteran alleged that his left foot disability manifested as a result of training in cold weather and a frostbite injury during a National Guard training exercise in November 1997. See June 2012 Informal Claims. Based on a review of the record, the Board finds that the Veteran does not meet the criteria for service connection for a left foot disability as the preponderance of the evidence supports a finding that there is no current disability. Regarding the first element of service connection (a current disability), the medical evidence does not reflect a diagnosis of a left foot disability. Although the Veteran claimed that he has “corn” or “skin issue” of the left foot disability, the medical evidence is void of any reference to a left foot disability, to include “corn,” frostbite, and skin issue. See June 2012 Informal Claims. A review of the service treatment records shows that the Veteran denied having any foot trouble in November 1985, September 1989, and March 1995. See May 2012 STR – Medical and June 2014 STR – Medical. Moreover, the post service treatment records are silent to any complaints or treatment for a left foot disability. Specifically, in the December 2013 and December 2018 VA treatment records, the Veteran was noted to have unremarkable lower extremities. See April 2015 CAPRI and December 2019 CAPRI. In fact, the records do not indicate any complaints of left foot related pain or symptoms. The Board finds that although the Veteran may have had a skin-related left foot disability in service, the Veteran’s left foot skin disability was resolved as there is no current evidence of a left foot skin disability. As the medical records do not reflect a diagnosis of a left foot disability, the Board finds that the first element has not been met. Moreover, as there is no complaint, symptoms, or treatment of a left foot disability and no abnormalities on post service physical examination, the Board finds that there is no etiological relationship between the Veteran’s in-service left foot skin disability and the Veteran’s current left foot. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for a left foot disability but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran’s active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Board finds that there is no competent evidence of a current diagnosis of a left foot disability or indication that such may be related to his active service. For these reasons, the Board finds a VA medical opinion is not necessary to decide the claim of service connection for a left foot disability. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). In the absence of a current disability and indication that any such disability is related to his active service, and the claim for service connection for a left foot disability cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 3. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, major depressive disorder, anxiety disorder, affective disorder, and polysubstance dependence, is denied. 4. Entitlement to service connection for residuals of TBI is denied. After a review of the record, the Board finds that although the Veteran has current diagnoses of a psychiatric disability and possible residuals of TBI, he does not meet the standards for service connection as the preponderance of the evidence supports a finding that there is no nexus between active service and the current disability. Regarding the first element of service connection (a current disability), the medical evidence reflects a diagnosis of PTSD, major depressive disorder, anxiety disorder, affective disorder, polysubstance dependence, and tension headaches. Specifically, in a November 2014 VA treatment record, the Veteran was diagnosed with PTSD, major depressive disorder, and anxiety disorder. See April 2015 CAPRI. In a February 2015 Social Security Administration (SSA) record, the Veteran was diagnosed with affective disorder. See December 2019 Medical Treatment Records – Furnished by SSA. In a November 2014 VA treatment record, the Veteran was diagnosed with polysubstance dependence. See April 2015 CAPRI. Despite these diagnoses, the Board notes that in a May 2016 SSA record, the Veteran stated that he no longer has depression or anxiety issues. See December 2019 Medical Treatment Records – Furnished by SSA. In an October 2017 VA treatment record, the Veteran was diagnosed with tension headaches. See December 2019 CAPRI. Accordingly, the Board finds that the first element has been met. Concerning the second element, the although the service treatment records reflect potential PTSD stressors, all were during a period that is barred from VA benefits. The records show that the Veteran stated that his psychiatric disability manifested around August 2005 when he was in Louisiana due to Hurricane Katrina. The Veteran stated that he was traumatized when he saw dead bodies. The Veteran also reported encountering significant mortar attacks from June 2006 to October 2007. The Veteran also claimed that his base was infiltrated by Iraqis in February 2007. See June 2013 STR – Medical – Photocopy. The Veteran claimed that he self-medicated by using drugs and alcohol and that he “did not have any ‘substance’ abuse problems prior to 2009.” See October 2013 VA 21-4138 Statement in Support of Claim. The Board finds that all the claims of traumatic experience were during the period that is barred from VA benefits. As the service treatment records and the Veteran’s statements do not show any complaints or endorsement of a psychiatric-related symptoms prior to 2004 the Board finds that there is no in-service psychiatric-related event or injury. As for residuals of TBI, the Veteran claimed that he has TBI as he was exposed to large explosions. See June 2012 Informal Claims. Specifically, in the October 2015 private medical record, the Veteran reported that he injured his head while in Iraq in 2006 (during the period in which the Veteran is barred from receiving VA benefits). The Veteran claimed that he was in a building that was hit by a mortar rocket. The Veteran stated that he fell and hit his head on the ground with loss of consciousness for several seconds. A June 2008 service treatment record shows that the Veteran reported a blast or explosion during his deployment but denied having lost consciousness or had any symptoms related to TBI. Further, the service treatment records show that in September 2009, June 2010, and December 2013, the Veteran denied having a history of TBI. See June 2015 STR – Reserve STR and April 2015 CAPRI. Based on the foregoing, the Board finds that the Veteran does not have an in-service event of TBI in service. Even if the Veteran did have an in-service event TBI in 2006, that period of service is a bar to receiving VA benefits. As the service treatment records and the Veteran’s statements do not show any complaints or endorsement of a TBI-related incident prior to 2004 the Board finds that the there is no in-service incurrence of a disease or injury. The Board notes that the Veteran was afforded a VA examination in June 2012 wherein the examiner diagnosed the Veteran with alcohol dependence, anxiety disorder, and depressive disorder, but not PTSD or residuals of TBI. The examiner noted that the Veteran claimed that his PTSD began in 2008, a period that is barred from benefits. The examiner did not opine as to the etiology of the Veteran’s psychiatric disability. The Board notes that in June 2012 the Veteran disputed the June 2012 VA examiner’s assessment. The Veteran claimed that the examiner conducted a “very unprofessional evaluation and asked numerous irrelevant questions.” See June 2012 VA 21-4138 Statement in Support of Claim. The Veteran also stated that the examiner’s assessment is incomplete as the examiner did not have all pertinent medical records. However, a review of the June 2012 VA examination reflects that it was conducted by a psychologist, the Veteran’s psychiatric symptoms and onset of symptoms were recorded, and the examination comported with the PTSD examination protocol. There is no indication that the VA examination was inadequate. (Continued on the next page)   In conclusion, although the Veteran has established a current disability, the preponderance of the evidence does not establish that there is a link to his military service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claims for an acquired psychiatric disorder and the residuals of a TBI are denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.