Citation Nr: 21006501 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-50 097 DATE: February 4, 2021 ORDER Service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, is granted. Service connection for sleep apnea is granted. REMANDED Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran’s acquired psychiatric disorder, diagnosed as major depressive disorder, is related to his service-connected low back disorder. 2. The Veteran’s sleep apnea had its onset in service. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran’s favor, the criteria for establishing service connection for an acquired psychiatric disorder, diagnosed as diagnosed as major depressive disorder, have been met. 38 U.S.C. § 1101, 1110, 1112, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2019). 2. Resolving doubt in the Veteran’s favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C. § 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from July 1981 to February 1987 and from October 1990 to April 1991. He had additional service in the U.S. Navy Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This claim was previously before the Board in July 2018, at which time it was remanded for additional development. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for an acquired psychiatric disorder An April 2018 psychology note indicated that the Veteran had current diagnoses of moderate major depressive disorder and mild alcohol use disorder. Pursuant to the July 2018 Board remand, the Veteran received a VA examination in October 2019 and the examiner noted diagnoses of moderate alcohol use disorder and an unspecified anxiety disorder, although he acknowledged that the Veteran additional carried a diagnosis of depressive disorder. He reported exacerbated anxious and depressed moods during the past months, identifying continuous worry, increased irritability, and difficulty relaxing. Based on the results of the examination, the examiner concluded that the Veteran’s acquired psychiatric disorder was less likely than not caused by service. The alcohol use disorder started prior to service and he was never diagnosed with such a disorder during service. Furthermore, the Veteran claimed he started drinking in excess after discharge. The cause of the Veteran’s alcohol use disorder was not clear, but the examiner noted that scientific literature pointed towards genetic and environmental causes. The diagnosed anxiety was most likely a result of than a cause of drinking. The examiner also found no clear relation between the service-connected lumbosacral strain and acquired psychiatric disorder but noted that literature pointed to the commonality of chronic pain and depressed mood. The Board finds the October 2019 examination to be of diminished probative value as the examiner did not note the Veteran’s currently diagnosed major depressive disorder. Furthermore, the rationale is internally inconsistent; the examiner concludes that the alcohol use disorder started prior to service, but indicates that there was no diagnosis of such a disorder during service and also highlights the Veteran’s contentions that he began to drink in excess following service. The Board highlights that, despite not adding the Veteran’s major depressive disorder diagnosis as an additional diagnosis in his report, the examiner nonetheless notes that the Veteran has also been diagnosed with this condition and offers an opinion linking the Veteran’s chronic pain from his lumbar condition with the acquired psychiatric disorder. Accordingly, reading the evidence in a manner most favorable to the Veteran, the Board finds that the evidence is at least in relative equipoise with respect to the cause of the Veteran’s major depressive disorder. As such, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s condition is at least as likely as not due to his service-connected lumbar condition. Accordingly, the Board finds that service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, is warranted. 2. Entitlement to service connection for sleep apnea The Veteran submitted his notice of disagreement in December 2017 and stated that he developed sleep apnea during active duty and while he developed asthma. On his December 2018 Substantive Appeal, VA Form 9, the Veteran urged that he awakened during service every morning with headaches. He also would fall asleep while speaking with his fellow soldiers. Pursuant to the July 2018 Board remand, the Veteran received a VA examination in October 2019 and the examiner noted a diagnosis of obstructive sleep apnea. The Veteran reported an inability to remain asleep and insomnia to his primary care physician. Based on the results of the examination, the examiner concluded that the condition was less likely than not incurred in or caused by service. The service treatment records were silent for sleep apnea related symptoms and a diagnosis for sleep apnea. Furthermore, there was no evidence of sleep apnea within a year of separation. The examiner also found that sleep apnea was not caused or aggravated by any service-connected disorder, as medical literature did not report any evidence relating sleep apnea to tinnitus, bronchial asthma, or lumbar spine degenerative disc disease. The Board finds that the negative opinion is ultimately based on the lack of complaints, treatment, or diagnosis of sleep apnea during service. This examiner appears to assume that a diagnosis in service is necessary. It has long been held that 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. See 38 C.F.R. § 3.303. The Veteran is competent to report these observed symptoms, as they are within the realm of his personal experience and are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-70 (a layperson is considered competent to report on that of which he or she has personal knowledge). The Board also finds that the reports of these symptoms during and since service are credible. As such, there is persuasive lay evidence demonstrating that the Veteran’s symptoms began in service. In light of the foregoing, and resolving reasonable doubt in the Veteran’s favor, and considering the Veteran’s competent and credible reports of sleep disturbances in and since service, the Board finds that the evidence is in equipoise and that service connection is also warranted for sleep apnea. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Entitlement to TDIU Regarding the Veteran’s claim of entitlement to TDIU, the Board finds that it is inextricably intertwined with the acquired psychiatric disorder and sleep apnea disabilities that have been service connected by this decision, and thus the Board will defer consideration of the appeal with regard to entitlement to TDIU until the RO has had an opportunity to rate these newly service-connected disabilities. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Upon completion of any additional development following the rating assignment for the newly service-connected acquired psychiatric disorder and sleep apnea, readjudicate the claim for TDIU. If the benefit is not granted, issue the Veteran and his representative a supplement statement of the case (SSOC) and return the matter to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.