Citation Nr: 21016009 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-08 900 DATE: March 19, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. No diagnosis of PTSD is based on fear of hostile military or terrorist activity and the Veteran did not engage in combat with the enemy. The reported stressor is not consistent with the requirements of VA regulation. 2. An acquired psychiatric disorder was not manifest during service and is unrelated to service. 3. Obstructive sleep apnea did not manifest in service and is unrelated to service. 4. Obstructive sleep apnea is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 2. An acquired psychiatric disorder was not incurred in or aggravated by active service, and psychosis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. Obstructive sleep apnea is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to April 1992. He testified before the undersigned Veterans Law Judge at a December 2020 videoconference hearing. Pursuant to Clemmons v. Shinseki, 23 Vet. App. 1 (2009) and the evidence of record, the Board has expanded the Veteran’s compensation claim for PTSD to include any acquired psychiatric disorder. Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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 -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). There is no evidence that the Veteran has been diagnosed with a psychosis and his diagnosed psychiatric disorders are not identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). 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) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-IV/V). The Veteran has not asserted, and personnel records do not indicate, that he has combat experience or was otherwise exposed to hostile military or terrorist activity. 38 C.F.R. § 3.304 (f). Similarly, the Veteran does not assert that his claimed PTSD is based on personal assault. 38 C.F.R. § 3.304 (f)(5); Patton v. West, 12 Vet. App. 272 (1999). Notably, the Veteran’s reported stressor is not related to such incurrences. The Veteran’s claimed stressor is related to his general discharge from the Navy after he was found to have made false statements in the course of obtaining an identification card. Specifically, the Veteran lied about his age in order to obtain alcoholic beverages. In his January 2013 Stressor Statement and his December 2020 hearing testimony, the Veteran asserts that he believes he was wrongly discharged for this “mistake” and that he has experienced depression, paranoia, and various other psychological symptoms due to his discharge. The Veteran feels shame as a result of his discharge and his inability to further serve his country. Personnel records confirm that the Veteran was discharged as a result of his obtaining and using a false identification card. A review of service treatment records shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of a psychiatric disorder, to include PTSD. At the Veteran’s April 1992 separation examination, the Veteran had a normal psychiatric evaluation. In an accompanying Report of Medical History, he specifically denied depression or excessive worry, frequent trouble sleeping, nervous trouble of any sort, and any other potentially relevant symptoms. VA treatment records note a history of PTSD and major depressive disorder. There is a July 2018 positive PTSD screening. More recent VA Mental Health Notes, including a December 2020 report, diagnose unspecified anxiety disorder with features of panic, other specified trauma and stressor related disorder, and other specified depressive disorder. With respect to the Veteran’s claimed stressor, he does not assert, and the record does not indicate that the disciplinary proceedings that led to his general discharge were performed in an abnormal or improper manner. While the Board understands that his discharge from the Navy may have been disappointing and led to regret, this disappointment stemming from disciplinary action that is a direct result of the Veteran’s own misconduct does not meet the requirements of a stressor under section 3.304(f). VA regulation defines willful misconduct as “an act involving conscious wrongdoing or known prohibited action.” 38 C.F.R. § 3.1(n). It further prohibits the grant of direct service connection when a disability was the result of the Veteran’s own willful misconduct. 38 C.F.R. § 3.301. Thus, to the extent that the Veteran does have PTSD based on his reported stressor, that stressor does not meet the requirements of section 3.304(f) and the reported stressor is the direct result of the Veteran’s own willful misconduct as defined by VA regulation. To the extent that the Veteran has a diagnosis of PTSD, the Board finds that the diagnosis is solely based on the Veteran’s reported stressor, which is not valid under VA regulation. As noted above, entitlement to service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a confirmed stressor event, and medical evidence linking the stressor event to the Veteran’s PTSD. Here, there is no confirmed stressor event in service. In regard to the change to 38 C.F.R. § 3.304, it does not assist the Veteran. He did not experience, witness or confront an event or circumstance that involved actual death or injury or the integrity of another within the meaning of the regulation. There was no actual threat to him of injury or death due to hostile military activity and he has provided nothing credible in this regard. See Hall v. Shinseki, 717F.3d 1369 (2013). Specific to in-service personal assault as outlined in 38 C.F.R. § 3.304 (f)(5), the Veteran has not reported that he was assaulted. With respect to any other psychiatric disorder, to include major depressive disorder, unspecified anxiety disorder with features of panic, other specified trauma and stressor related disorder, and other specified depressive disorder, there is no evidence of psychiatric disability in service or for many years thereafter. Rather, the separation examination revealed a normal psychiatric evaluation and the Veteran specifically denied any relevant symptoms. The weight of the evidence reflects that the Veteran’s claimed psychiatric disorders are unrelated to his service. There is no probative evidence that these claimed disorders are related to service. Specific to PTSD, the evidence does not show that any such diagnosis is related to a verified in-service stressor or a possible exception. The preponderance of the evidence is against the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and the claim must be denied. The Board recognizes that the Veteran was not afforded a VA examination with respect to this issue. However, no examination is necessary for the adjudication of this claim. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained, with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Here, there is no evidence of record with respect to the existence of an in-service event, injury, or disease or any evidence of an association between the Veteran’s claimed disorders and his service. The reported stressor does not meet regulatory requirements and results from the Veteran’s own misconduct. There is clearly sufficient competent medical evidence of record to adjudicate the Veteran’s claim. A mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In other words, absent such evidence, the Board finds that it is unnecessary to require the Veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the incurrence of the claimed disability in service. 2. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder The Veteran’s primary assertion is that his diagnosed obstructive sleep apnea is secondary to his PTSD. As the Board has determined that service connection is not warranted for PTSD or any other acquired psychiatric disorder, there is no basis for secondary service connection. 38 C.F.R. § 3.310. As such, the Board will not discuss the provisions of section 3.310. The Veteran did testify at his Board hearing that his sleep difficulties began during service. Specifically, he reported that as punishment for his misconduct while at sea he was prevented from sleeping in order to “muster every hour” before returning. As such, the Board will address a direct theory of service connection. Obstructive sleep apnea is not identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). The Veteran asserts that he has had difficulty sleeping his active service. He reports that he was first diagnosed with sleep apnea around the time he was 30 years old, in approximately 2001 or nine years after discharge. A review of service treatment records shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of sleep apnea. At the Veteran’s April 1992 discharge examination, all relevant systems were normal including the head, face, neck, nose, sinuses, mouth, and throat. In an accompanying Report of Medical History, the Veteran specifically denied frequent trouble sleeping or any other relevant symptoms. VA treatment records confirm a diagnosis of obstructive sleep apnea. However, there is no evidence linking this disorder to the Veteran’s service. The Veteran has not submitted any private medical evidence in support of his claim. The contemporaneous records establish that obstructive sleep apnea manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than any assertion of continuity and treatment. The Board notes the statements of the Veteran with respect to difficulty sleeping since his last few months in service. However, such assertions are directly contradicted by his own specific denial of trouble sleeping or any other relevant symptoms upon separation, as well as the normal clinical evaluation. The more probative evidence establishes that he did not have sleep apnea during service. Furthermore, the evidence establishes that the remote onset of sleep apnea is unrelated to service. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. The Board again recognizes that the Veteran was not afforded a VA examination with respect to this issue. However, no examination is necessary for the adjudication of this claim. There is no competent evidence of record with respect to the existence of an in-service event, injury, or disease or any evidence of an association between the Veteran’s sleep apnea and his service. There is clearly sufficient competent medical evidence of record to adjudicate the Veteran’s claim. See McLendon, supra; 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The Board finds that it is unnecessary to require the Veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the incurrence of the claimed disability in service. See Waters, supra. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.