Citation Nr: 21023367 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-38 589 DATE: April 20, 2021 ORDER 1. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. 2. Entitlement to service connection for a psychiatric disorder (other than PTSD), to include other specified rapid eye movement (REM) behavior disorder and depression, to include as secondary to OSA, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s OSA had its onset during active service or is otherwise related to active service. 2. The preponderance of the evidence is against a finding that the Veteran has a psychiatric disorder (other than PTSD), to include other specified REM behavior disorder and depression, that began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a psychiatric disorder (other than PTSD), to include other specified REM behavior disorder and depression, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the US Army from September 1967 to December 1970. In December 2018, the Veteran and his wife provided testimony at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. The issues were then remanded in a July 2019 Board of Veterans’ Appeals (“Board”) decision in order to obtain outstanding records and an addendum opinion regarding the Veteran’s claimed psychiatric disorders. Additional VA treatment records were associated with the claims file and a subsequent development letter, including a release form to obtain information from medical providers, was sent to the Veteran; however, no response was received from the Veteran or his representative. An addendum opinion from a VA psychologist was submitted in August 2020. Accordingly, there has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The July 2019 Board decision also expanded the Veteran’s service connection claim and separated consideration of the Veteran’s claimed PTSD from consideration of any other psychiatric disorder, as characterized herein. Service connection for PTSD, having previously been addressed, is not presently at issue before the Board. The Veteran has reported that he was diagnosed with sleep apnea approximately 20 years ago. He states that he was also assessed with a sleep disorder and experiences frequent sleep disturbances. His wife has reported that he talks and flails in his sleep, such that she is unable to share a bed with the Veteran. The Veteran has also reported a range of psychiatric symptoms which he has attributed to trauma experienced during service, including depression, emotional lability, memory problems, irritability, concentration deficits, and decreased motivation. He contends that he was in a hostile environment during service when deployed to Vietnam, where he engaged in combat with the enemy and observed many dead bodies. Service Connection In general, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 U.S.C. § 5103(a). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding of service connection. The reasons follow. 1. Entitlement to service connection for OSA The Veteran’s treatment records confirm the presence of a current disability of OSA with medical notes reflecting that the Veteran has not been able to tolerate prescribed CPAP and BiPAP treatments while sleeping. However, the preponderance of the evidence is against a finding of a disease or injury in service and against a nexus between the Veteran’s current disability and his active duty. The Veteran’s service treatment records do not show complaints, treatment, or diagnoses relating to OSA. On separation examination in April 1970, the Veteran specifically denied experiencing frequent trouble sleeping and did not report any respiratory problems. The April 1970 Report of Medical Examination shows that clinical evaluation of the mouth and throat was normal. Thereafter, the record does not show complaints relating to this disability or mention of a diagnosis for approximately 30 years following service discharge. This evidence does not lend to a finding that the Veteran’s OSA had its onset in service. The Veteran testified that he was diagnosed with OSA in 2000 or 2001. The earliest evidence of OSA in the medical evidence appears to be a diagnosis contained in an August 2004 polysomnogram report. The record indicates that, at that time, the Veteran was referred for a sleep study to Dr. Suresh Daniel, which purportedly detailed the Veteran’s sleep history. These records were specifically mentioned in the subsequent development letter with a release authorization form sent to the Veteran pursuant to the July 2019 Board remand. As noted, no response to this correspondence has been received. A November 2012 treatment note states that OSA was diagnosed a “few years ago” by an outside provider and the Veteran has been seen for routine follow-up treatment since that time. However, the objective medical evidence does not suggest or show a nexus between the Veteran’s disability and his military service, and the Veteran has not provided an explanation relating thereto. The weight of the evidence does not support a contention that the Veteran’s OSA is associated with his military service. The Board notes that VA has not provided the Veteran with an examination or opinion in connection with the claim for service connection for OSA. VA must provide a medical examination 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, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, 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). In this case, the evidence does not show an event, injury, or disease occurred in service, or an indication that OSA may be associated with the Veteran’s service. Rather, the Veteran denied frequent sleep disturbances on his separation examination and was not assessed with OSA for approximately 30 years following discharge. For a VA examination to be warranted, all the McLendon criteria must be met, and at least one element is not met. "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, entitlement to a VA examination and/or medical opinion is not warranted for this service-connection claim. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for service connection for OSA is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a psychiatric disorder (other than PTSD), to include other specified REM behavior disorder and depression. The Veteran has a current diagnosis of depression, which has been assessed intermittently with periods of resolution, since 2013. However, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of other specified REM behavior disorder, as discussed in greater detail herein. Additionally, the preponderance of the evidence is against an in-service disease or injury, or a nexus relating a current psychiatric disorder to military service. The Veteran’s service treatment records do not document mental health complaints, treatment, or diagnoses during active duty. During his April 1970 separation examination, the Veteran checked a box indicating that he had previously been a patient in a mental hospital or sanitorium but clarified that the treatment was for a high temperature. The Veteran specifically denied a history of experiencing depression or excessive worry, frequent trouble sleeping, frequent nightmares, nervous trouble of any sort, and memory loss. He also received a normal clinical psychiatric evaluation. Following discharge, the record does not document complaints of or treatment for mental health issues for more than four decades following discharge. These findings do not support that the Veteran’s depression had its onset in service. More recently, the Veteran denied depression during treatment in July 2012. During this time, the Veteran was noted to be working as a truck driver. He reported no complaints except for some back pain. Records of a November 2012 VA mental health consultation reflect that the psychologist found that the Veteran’s reports of moving about and hitting his wife in his sleep was not associated with significant daytime anxiety for the Veteran and noted that the Veteran denied the seriousness of any other psychiatric symptoms. The psychologist stated that the Veteran’s sleep problems were more likely related to sleep apnea and recommended that he work with his sleep center regarding this issue. The Veteran denied any history of psychiatric treatment. The Veteran was provided a Disability Benefits Questionnaire examination for PTSD in February 2013, in which the examiner found that the Veteran did not have a diagnosis of a psychiatric disorder. The examiner concluded that, based on the examination, that the Veteran did not need to seek follow-up treatment at the time. The Veteran was assessed with depression following a May 2013 consultation wherein he reported increased depressive symptoms and was advised to consider participation in a depression management group. Treatment notes reflect that the Veteran’s depressive symptoms related to the Veteran’s recent retirement, which gave the Veteran more time to be alone with his thoughts, and that he was also discouraged due to his decreased physical abilities. The Veteran received intermittent counseling thereafter. VA treatment records in September 2015 indicate that the Veteran sought treatment for worsening symptoms and that he had last been seen in January 2014. Notes reflect the Veteran’s retirement and finances to be contributing factors to his depression, which is evidence against a finding that the Veteran’s condition was etiologically related to his military service. Notably, elsewhere in the same treatment record, a diagnosis of PTSD was listed, and the Veteran’s military service in Vietnam was noted as a contributory factor. That said, service was not listed as a contributory factor in the section that exclusively mentioned the Veteran’s depression diagnosis shows that the Veteran’s depression was being distinguished from the finding of PTSD and that depression was not related to the Veteran’s military service. The Board again notes that the within claim relates only to non-PTSD psychiatric disorders. Treatment notes from January 2016 document that the Veteran’s depression had resolved and the he was currently experiencing no symptoms. He reported that he was again working as a truck driver at this time. The Veteran was provided another VA PTSD examination in March 2016. The examiner wrote that the Veteran denied mental health treatment during his military service and that service treatment records showed no history of mental health treatment or reports of psychiatric symptoms. The examiner wrote that the Veteran denied mental health hospitalizations since service discharge and that the Veteran’s mental health treatment had consisted of intermittent psychotherapy. The examiner provided only a diagnosis of “other specified REM behavior disorder.” The Veteran had not received such a diagnosis to this point, which had previously been ruled out on multiple occasions by VA treating providers. Pursuant to the July 2019 Board remand, the claims file was reviewed by a VA psychologist who offered an addendum opinion regarding the Veteran’s mental health history and current diagnoses. The psychologist opined that the Veteran’s depression was not related to service, given the Veteran’s prior denials of depression and the significant amount of time between the Veteran’s discharge and his reports of depressive symptoms decades later. However, the opinion was deemed inadequate because it failed to address all questions directed by the Board remand order. Therefore, the claims file was reviewed by a separate VA psychologist in August 2020 for an addendum opinion. The opining August 2020 psychologist stated that the Veteran does not have a mental health diagnosis related to military service, as per the prior VA examination reports in 2013 and 2016. The VA psychologist stated that the Veteran does not have a diagnosis of other specified REM behavior disorder and that it is believed that the 2016 VA examiner meant to write “R/O (Rule-Out) Other Specified REM behavior Disorder” which would be consistent with the rule-out diagnoses by VA psychiatrists in September and October 2015. The psychologist also found this explanation be consistent with the statement that the 2016 VA examiner did not provide a likely etiology of the “Other Specified REM Behavior Disorder” diagnosis. It is noted that the psychologist inaccurately attributed this statement to the January 2020 reviewing psychologist, instead of the July 2019 Board remand from which it originated. The Board finds this error to be immaterial as the statement at issue was a recitation of fact and, thus, does not change the basis of any conclusions made by the opining psychologist. Furthermore, the psychologist reiterated the opinion that the Veteran’s depression is not related to service, citing to the statements of the January 2020 opining psychologist that the Veteran’s service treatment records do not show any psychological complaints and that the evidence does not show the Veteran to have reported depressive symptoms for more than 40 years following service. While the Veteran is competent to report observed symptoms, he is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his observed symptoms. The August 2020 opining VA psychologist is an expert and was able to review the longitudinal evidence of record and provided a reasoned rationale supported by the evidence of record. As described herein, the 2016 diagnosis of a specified REM behavior disorder appears to be in error, consistent with the Veteran’s treatment history and the fact that the diagnosis included no accompanying explanation. The weight of the evidence also indicates that the Veteran’s depression is not related to service, based on the lack of an in-service incurrence or a nexus relating thereto, as supported by the opinions of the VA psychologists. At the present time, there is no competent evidence of a nexus between the post-service psychiatric disorder and service. The Board acknowledges the contentions of the Veteran’s representative submitted in February 2021, including that the VA opinions did not explicitly discuss the Veteran’s combat experience as a stressor relating to any psychiatric disorder. The Board notes that the Veteran’s credibility relating to his specific stressors is not being questioned herein. Detailing specifics as to the stressors is not warranted and is not requisite to the conclusions of multiple examiners that the Veteran’s current depression is not related to his service. Although the questionnaire provided to the August 2020 VA psychologist requests specific consideration of the Veteran’s alleged in-service combat stressors, consideration of said stressors is subsumed by the psychologist’s larger conclusion that the present disability is not related to service, which would clearly entail his combat stressors. An evaluation of stressors is required for consideration of service connection for PTSD and the record does point to some inconsistencies in the Veteran’s report of stressors over time; however, the within claim is for non-PTSD psychiatric disorders, and a detailed discussion or credibility determination relating thereto is not warranted. Most relevant to the within claim is the fact that the Veteran denied any psychiatric symptoms in service and on separation examination and thereafter did not report psychiatric symptoms for more than 40 years, while denying depression. The record also points to multiple intercurrent causes for the Veteran’s depression, such as retirement, financial issues, and obesity. The representative has also argued the VA expert opinions to be inadequate for failing to cite to specific intercurrent causes for the Veteran’s depression. The Board finds the August 2020 psychologist’s rationale sufficient to justify her conclusion that the Veteran’s non-PTSD psychiatric disorder is not related to service. The rationale makes clear that the record demonstrates that the Veteran did not endorse symptoms of a psychiatric disorder during service or for more than 40 years after, and that the Veteran’s denials of symptoms such as depression during that time are sufficient to demonstrate that the subsequent onset of depression was less likely than not related to service. It is made clear within the opinion that the psychologist means to state that any onset of depression relating to service would have occurred less than 40 years in proximity to service. Although intercurrent causes were not specifically listed, the Board notes, as above, that they were present and discussed in the record at the time of the Veteran’s depression onset and include issues relating to retirement, financial problems, and obesity. An opining psychologist need not provide a recitation of every relevant finding in the medical record when the rationale is otherwise sufficient to show that adequate reasons were provided for the psychologist’s conclusions and that the assessment was otherwise fully informed. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds these contentions to be without merit. While the record suggests that the Veteran’s sleep problems are likely attributable to his OSA, as reflected in the Veteran’s November 2012 psychological assessment, a theory of secondary service connection is not available to the Veteran because the preponderance of the evidence is against a finding that the Veteran has a current disability of other specified REM behavior disorder, and, as discussed above, the Veteran has been denied service connection for OSA. Finally, the Board acknowledges the representative’s contention that the most recent VA psychologist’s opinion is inadequate because portions of the assessment were marked “N/A,” which the representative deemed to signal an inadequate response. The Board notes that the psychologist addressed multiple relevant questions in one broader rationale provided at the end of the opinion after the questions were listed in succession. The topics not addressed by the VA psychologist relate to theories of secondary service connection which are precluded by the Veteran’s lack of service connection for OSA and the lack of a diagnosis of other specified REM behavior disorder. The purpose of obtaining expert opinions is to provide the Board with sufficient information to make a proper finding relating to the Veteran’s claim. In this instance, the Board finds that sufficient information is present and that a lack of answers relating to a secondary theory of entitlement that is not available to the Veteran due to a lack of service-connection does not render this assessment deficient and/or inadequate. The weight of the evidence shows that the Veteran’s current psychiatric disorder (other than PTSD) is not related to service, as supported by his denials of any psychiatric symptoms during, and for more than 40 years following, service, and the intercurrent factors present at the time of the Veteran’s onset of depression. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt doctrine is not for application, and the Veteran’s claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.