Citation Nr: 21011600 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-40 711 DATE: March 2, 2021 ORDER 1. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder, is denied. 2. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The Veteran’s current psychiatric disorder, to include major depressive disorder, did not have its onset in service and is not otherwise related to service. 2. Obstructive sleep apnea was not incurred in service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include major depressive disorder, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to October 1985. In March 2020, the Veteran and his wife provided testimony at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in San Antonio, Texas. A copy of the hearing transcript is associated with the claims file. At the hearing, the Veteran submitted VA treatment records from 2020. Following the hearing, the Veteran submitted medical records from Dr. Oscar Benavides, VA treatment records, and lay statements from his wife and children. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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. 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder. The Veteran asserts that service connection for a psychiatric disorder is warranted because it was incurred in or is otherwise related to his military service. During the March 2020 Travel Board hearing, the Veteran testified that his first sergeant told him that he would do everything he could to help arrange to have his family join him in Germany, however, he did nothing and contended that it was the main cause of his stress. The Veteran believed that his first sergeant did not like him and would treat him differently. He stated that he started drinking a lot knowing that he had no support form his first sergeant or the company commander. See also May 2019 notice of disagreement. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that service connection for a psychiatric disorder is warranted. The reasons follow. As to evidence of a current disability, the Veteran has a current psychiatric disorder. An April 2018 VA examiner confirmed a diagnosis of major depressive disorder. VA medical records including in April 2019 note a diagnostic impression of major depressive disorder, moderate, recurrent and generalized anxiety disorder. Accordingly, the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the Veteran’s service treatment records from May 1982 to August 1982 show complaints of adjustment reaction to adult life, disturbance of mood, and depression, and that the Veteran contemplated suicide because of separation from his wife and daughter, the death of his grandmother, and issues with his father-in-law. Thus, the second element of a service-connection claim has been met. The Veteran has met the first two elements of service connection with a current disability and evidence of in-service complaints of feeling depressed and contemplated suicide. That fact notwithstanding, however, the Board finds that service connection for a psychiatric disorder is not warranted because the preponderance of the evidence is against a finding to establish the required nexus between the disability and the Veteran’s military service, to include as secondary to service-connected disability or disabilities. Service treatment records indicate that the Veteran’s initial visit for his complaints of depression was in May 1982 and terminated in August 1982. A June 1982 Report of Psychiatric Evaluation notes a diagnosis of adjustment reaction to adult life with disturbance of mood (depression). The Veteran was seen on a walk-in emergency basis with complaints of feelings of helplessness and loneliness from being separated from his wife and child and had just returned from emergency leave of 30 days due to the death of his grandmother. The Veteran’s wife called him and stated that she could no longer tolerate living with his family, and the Veteran was unable to locate any housing. It was noted that an administrative Chapter 5 separation was recommended, and that the Veteran would see his Commanding Officer as he desired discharge. A June 1982 Unit Command Report for Psychiatric Examination indicates that the Veteran arrived in April 1982 and was very depressed. During the three months he was in the unit, he had threatened to commit suicide on two, different occasions. The report reflects that the Veteran seemed gravely concerned that his wife and daughter are with his father-in-law in Texas and that he had to pay his father-in-law more than he could afford. The Veteran’s wife and daughter being in Texas made the separation very difficult. The commander indicated that the Veteran’s conduct and efficiency as far as job performance at the time was comparable to his peers. Further, he noted that rehabilitative transfer had been considered for the Veteran, but the situation would not change. The commander stated that the Veteran will not overcome his personal problems in the near future, cannot adapt socially or emotionally to his military environment. There was evidence of social and emotional maladjustment and the Veteran was recommended to be discharged. A July 1982 service treatment record to psychiatrics also noted that the Veteran was depressed over family separation, contemplated suicide several times under the influence of alcohol, and was offered a Chapter 5 [discharge]. A history of present illness was noted as separation from family, grandmother death, and alcoholism. A Chapter 5 was recommended. Following these events, a November 1984 Enlisted Evaluation Report reflects high marks for the Veteran’s professionalism and performance. The Veteran’s performance of duty during the period was described by one rater as as “outstanding” and that the Veteran’s “willingness to learn and ability to work with minimal supervision had enabled him to maintain the administrative files and [illegible] room updated.” The Veteran was noted to have represented the U.S. Army in the civilian community in an outstanding manner and his rapport had resulted in numerous referrals. The endorser also found that the Veteran’s performance was “outstanding” and noted that the Veteran was “flexible to complete all assigned tasks” and was “able to accomplish [illegible] totally unfamiliar, with little to no supervision at all” and was “unafraid of hard work.” Both the rater and endorser commented that the Veteran needed improvement in his physical appearance, but it did not interfere with his job performance. The Veteran’s October 1985 Report of Medical Examination at separation shows that a clinical evaluation of “psychiatric” was normal. Furthermore, the Veteran was assigned a “1” rating assessing “S” or psychiatric under the PULHES profile system, indicating that the Veteran’s psychiatric state was in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In the accompanying Report of Medical History, the Veteran denied that he had ever “attempted suicide,” or had at the time or ever had “frequent trouble sleeping,” “loss of memory or amnesia,” “nervous trouble of any sort,” and “periods of unconsciousness.” The Veteran also checked “no” when asked if he “ever been treated for a mental condition,” and if he “ever had any illness or injury other than those already noted.” While the Veteran indicated that he had “depression or excessive worry,” in section 25 for the physician’s summary and elaboration of all pertinent data, which requests that the physician comment on all of the Veteran’s positive answers, the examining physician made a specific remark, “depression not significant.” The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. The Veteran was afforded a VA examination for his claimed psychiatric disorder in April 2018. During the examination, the Veteran reported that his relationship with family members “stayed the same” after he joined the military. He stated that he got along poorly with other men in the military and reported significant problems with “fighting anybody.” He reported having two children born while in the military and reported good relationships with the children and his wife. The Veteran reported disciplinary action against him in the military for fighting in a bar. The VA examiner confirmed a diagnosis of major depressive disorder and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran’s May 1982 and June 1982 psychiatric evaluations that reflected adjustment disorder and depressed mood and problems adjusting to a military environment as well as significant family and financial problems, which appeared to have impaired his military career leading to his early separation from military service. The examiner also referenced VA records where the Veteran denied depressive and PTSD symptoms including October 2012, August 2016, and September 2016. The examiner also indicated that in November 2012, the Veteran’s reported symptoms were noted to not rise to a clinically significant level requiring psychological intervention, and he denied any military-related trauma. The examiner also referenced February 2018 VA records that show the Veteran had been diagnosed with major depressive disorder and generalized anxiety disorder. The Veteran reported that he did not get enough sleep and was primarily “overwhelmed by debt” and that his wife continued to criticize him for “never buying her her house.” The examiner noted that the Veteran reported that he was taking Sertraline for mood. He added that since the Veteran’s entry to military service, his record demonstrated problems adjusting to military service primarily due to financial and family problems leading to a diagnosis of adjustment disorder and separation from service. The examiner explained that between the Veteran’s departure from military service it appears that his symptoms of adjustment problems and depressive symptoms remitted such that he claimed to be without active symptoms or receiving any treatments for over 20 years, as indicated by VA treatment records where he repeatedly denied any depressive symptoms or described his symptoms as primarily related to financial and family problems and as being sub-clinical in severity, seen in VA medical records in 2012, 2015, and 2016. Therefore, the examiner concluded considering the considerable amount of time since manifestation of depressive symptoms in the military, as well as the nature of the causes that he has noted (i.e., financial and family problems), and the remarkable lack of treatment and symptoms in the intervening periods, it is unlikely that the Veteran’s period of service is causing his current depressive episode. This is evidence against a finding that a current psychiatric disorder had its onset in service or is otherwise related to service. The Board finds that the April 2018 VA examiner’s opinion is supported by the November 1984 Enlisted Evaluation Report which found that the Veteran’s performance was “outstanding” years after his documented depression in service from May 1982 to August 1982, and the Veteran’s October 1985 Report of Medical Examination and accompanying Report of Medical History at separation, which indicate a normal psychiatric state and that his depression was not significant. The Veteran’s representative also indicated that the Veteran was not medically retired but instead just chose not to reenlist after his time in service was finished during the March 2020 Board hearing. Although the Veteran testified that he chose to leave service because it caused him too much stress, the Veteran was not medically discharged early from service. This would show that the Veteran managed his 1982 episode of depression in service, even earning high marks in November 1984, and did not have a psychiatric disorder at the time that prevented him from completing his tour of duty. In other words, while the Veteran’s reported stress may have contributed to his reasoning for not reenlisting in service, the Veteran’s depression did not cause the Veteran to separate early from service. The Veteran has not provided competent evidence in support of a nexus between his military service and a psychiatric disorder, to include the 1982 episode of depression in service. The Board has considered the lay statements proffered by the Veteran, his wife and their children. Lay evidence may be competent to establish medical etiology or nexus. However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” The Veteran and his family are not medically trained and are therefore not qualified to competently opine about medical etiology of a psychiatric disorder, depressive disorder, in relation to his military service. While the Veteran’s wife is a nurse assistant at a nursing home, it has not been shown that she has the necessary medical expertise to competently opine on etiology of the Veteran’s current major depressive disorder. Psychiatric disorders require specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran and his family lack probative value. The Board finds that the most probative evidence of record is the opinion of the April 2018 VA examiner, a clinical psychologist. The VA examiner reviewed the claims file, interviewed the Veteran, performed an appropriate examination, and provided a medical opinion supported by well-reasoned rationale, which included a discussion of the specific facts in the Veteran’s file. The April 2018 medical opinion provides competent and probative evidence that weighs against the Veteran’s claim. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012). Accordingly, service connection for a psychiatric disorder, to include major depressive disorder, is not warranted. The preponderance of the evidence is against the claim of entitlement to service connection for a psychiatric disorder, to include major depressive disorder, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Veteran contends that service connection for obstructive sleep apnea (OSA) is warranted because it was incurred in, caused by or otherwise related to service. See March 2020 Travel Board hearing transcript. As to evidence of a current disability, the Veteran’s representative indicated during the March 2020 hearing that the Veteran had a sleep study and was diagnosed with sleep apnea in March 2020. This is documented in a March 2020 VA treatment record proffered by the Veteran. The Board has reviewed the record, including service treatment records and post-service medical records and finds that the preponderance of the evidence is against a finding that OSA had its onset in service or is otherwise related to service. The Veteran’s service treatment records are silent for any diagnosis, symptoms, or treatment of sleep apnea. The Veteran specifically denied that he had ever “been a sleepwalker” or that he ever had or had at the time “frequent trouble sleeping” in the October 1985 Report of Medical History at separation. Further, the October 1985 Report of Medical Examination reveals a normal clinical evaluation of all bodily systems including the “mouth and throat,” and no sleep disorders are noted by the examiner. The Veteran has not offered probative and competent evidence establishing a nexus between his OSA and service. The Veteran’s wife testified during the March 2020 Travel Board hearing that in service, the Veteran had trouble sleeping, would snore when he slept, and would shake his feet, legs, and then his whole body like “he was going through a seizure or something.” See also March 2020 statement from Veteran’s wife. While the Veteran and his wife are competent to report symptoms such as snoring, as lay individuals, they are not competent to provide a diagnosis of OSA based on his snoring and thus these statements are not competent evidence of the existence of OSA during service. Lay evidence may be competent to establish medical etiology or nexus. However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” The Board notes that the Veteran was diagnosed with OSA almost 35 years after his October 1985 separation from service, as shown in a March 2020 VA medical record, which documents that the Veteran appeared to be surprised to be diagnosed with obstructive sleep apnea and was resistant to the treatment of a Continuous Positive Airway Pressure (CPAP) machine. The Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A diagnosis of OSA requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran and his wife lack probative value. The Veteran was not afforded a VA examination in connection with the claim for service connection for sleep apnea. VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As laid out above, the Board finds as fact that the record does not show an indication that the disability may be associated with the Veteran’s service. For a VA examination to be warranted, all the criteria have to be met, and at least one criteria is not met. Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his OSA, the Board finds that his current OSA was not incurred in service and it is not otherwise related to service. Accordingly, service connection for OSA is not warranted. The preponderance of the evidence is against the claim of service connection for obstructive sleep apnea, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, 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.