Citation Nr: 21024336 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 11-24 819 DATE: April 22, 2021 ORDER Service connection for dysthymia is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to an acquired psychiatric disorder, is remanded. FINDING OF FACT The Veteran's currently diagnosed dysthymia is etiologically related to his active military service. CONCLUSION OF LAW 3. The criteria for service connection for dysthymia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to June 1992. The Veteran testified before the undersigned at a January 2012 Video Conference hearing. The hearing transcript is of record. In September 2014 and January 2017, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. In September 2018, the Board denied the Veteran’s claims for service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD) and service connection for obstructive sleep apnea, to include as secondary to an acquired psychiatric disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). In January 2020, the Board’s decision, as it pertained to the claims for service connection for an acquired psychiatric disorder and service connection for OSA, was vacated by the Court in a Memorandum Decision. The case has been returned to the Board for further adjudication. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for an acquired psychiatric disorder, to include dysthymia, adjustment disorder and depressive disorder The Veteran contends that his currently diagnosed psychiatric disorder developed as a result of going through a divorce from his wife of nineteen years in 1991, following his return from deployment in the Persian Gulf, during active military duty. Service treatment records do not contain evidence of a diagnosed psychiatric disorder during active duty or at discharge. After discharge, an October 1992 VA general examination revealed no psychiatric or personality problems. Private medical records show that in August 2009, he sought treatment for PTSD. The private examiner diagnosed adjustment disorder and depressed mood and noted a history of sleep problems since 1991, when the veteran returned from Desert Storm. At an October 2010 VA examination, the Veteran reported stressor events while serving in the Persian Gulf and upon his return being told by his wife unexpectedly that she wanted a divorce. He told the examiner that this event "was devastating" and "unexpected," and that he "first noticed himself withdrawing following his divorce." He also reported that many of his symptoms started in late 2008 and that he first sought psychiatric treatment in October 2009. He reported difficulty falling asleep, having thoughts of his divorce, getting depressed when watching war movies, getting angry at people, and withdrawing from people. The examiner stated that the Veteran presented as primarily depressed, provided a diagnosis of dysthymia, and opined that the Veteran’s dysthymia appeared to be related to his unexpected and unwanted divorce from his wife after he returned from deployment to Iraq in the early 1990s. At an April 2011 VA PTSD examination, the Veteran reported that he continued to try to move on from his unexpected and devastating divorce. The examiner diagnosed sleep impairment, noting that the Veteran had experienced sleep difficulties since his divorce in 1991. The examiner provided a diagnosis of adjustment disorder with mixed anxiety and depressed mood, but did not opine on its etiology. The Veteran was examined again in March 2012, and the examiner provided a diagnosis of dysthymia and found it more likely than not that his disorder was related to his divorce. An April 2017 VA examination report reflects a current diagnosis of persistent depressive disorder, or dysthymia, but the examiner noted the prior diagnoses of adjustment disorder and unspecified sleep-wake disorder. The examiner opined that the Veteran’s persistent depressive disorder was less likely than not related to service because his symptoms were not reported and thus, "did not manifest until well after his retirement from the Army.” The examiner also opined that the Veteran’s dysthymia diagnosed at the October 2010 examination was not caused by or a result of military service. The examiner noted that while the Veteran reported noticing symptoms around 1992 after his divorce, symptoms were not documented until approximately 18 years later. The examiner also noted that the medical records are inconsistent with the Veteran’s reported history, and cited to a February 2006 VA medical record showing that he denied feeling numb or detached from others, activities, or surroundings. The examiner also opined that the adjustment disorder diagnosed at the April 2011 examination was not caused by or a result of military service. The examiner reviewed the Vet Center records from that time and agreed with that examiner’s opinion that the Veteran’s psychiatric disorder was not related to military service. Based on the evidence of record, the examiner also agreed with the March 2012 examiner’s opinion that the Veteran’s dysthymia diagnosed at that time was not caused by or a result of military service. Lastly, the examiner opined that the Veteran’s unspecified sleep-wake disorder diagnosed at the December 2014 examination was not caused by or a result of military service, as the Veteran’s sleep difficulties were not reported until 2009, approximately 17 years after his retirement from the Army. As the April 2017 VA examiner's negative opinions are essentially based on the absence of evidence in the service treatment records and the absence of a diagnosed psychiatric disorder for many years after service, the opinions are inadequate for evaluation purposes. In this regard, the Board notes that service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2019). The absence of service treatment records showing in-service evidence of a psychiatric disorder is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current psychiatric disorder, and a medically sound basis for attributing such disorder to service, may serve as a basis for a grant of service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The April 2017 examiner noted twice that the Veteran’s psychiatric symptoms were previously associated with his divorce, and that the Veteran reported that his symptoms started around 1992 following his divorce. However, the examiner did not provide an opinion as to whether the psychiatric disorders, including adjustment disorder, depression, and dysthymia, identified after service, are related to a disease or injury in service, specifically the Veteran’s divorce in 1991, or to the Veteran's reports of continuous symptoms since service. The Veteran has consistently reported that he has experienced psychiatric symptoms since his divorce during active duty in 1991, following his return from the Persian Gulf. The evidence of record shows that the Veteran’s divorce was finalized in June 1991. See Divorce Decree submitted in March 2021. The Veteran is competent to report that he started experiencing psychiatric symptoms since his divorce in 1991 during active service and that he has continued to experience psychiatric symptoms since his separation from active service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran's statements and testimony regarding the onset of psychiatric symptoms since his in-service divorce in 1991 credible. The April 2017 examiner did not consider the Veteran's competent and credible reports that he had been suffering from psychiatric symptoms since service. Most significantly, it is symptoms, not treatment, that is relevant for the determination of whether there is a relationship between the in-service injury and subsequent symptomatology and the current disability. The April 2017 examiner appears to have relied more on lack of treatment than the credible evidence of symptomatology, and did not adequately address the Veteran's lay statements of continuity. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Accordingly, the Board finds that the April 2017 VA opinion is inadequate for evaluation purposes. The medical evidence of record shows that the Veteran has current diagnoses of adjustment disorder with mixed anxiety and depressed mood and dysthymia. The Veteran has consistently reported throughout the appeal that his wife divorced him unexpectedly upon his return from his deployment to Iraq in 1991. The record reflects that the Veteran’s divorce was finalized in June 1991, during active duty. Therefore, the Board finds that an in-service event occurred. The Veteran's reports of in-service psychiatric symptoms and a continuity of symptomatology provide evidence that a current psychiatric disorder may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Furthermore, two VA examiners have opined that the Veteran’s currently diagnosed dysthymia is related to his divorce, which occurred during active military service in 1991. There is evidence against the claim, in that the April 2017 VA examiner opined that the Veteran’s diagnosed psychiatric disorder is not related to service. However, for the reasons noted above, the Board finds the April 2017 examiner’s opinion inadequate. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's dysthymia was at least as likely as not caused or aggravated by his active military service. Thus, the Board finds that service connection for dysthymia is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to an acquired psychiatric disorder is remanded. The Veteran asserts that his currently diagnosed obstructive sleep apnea (OSA) is secondary to his now service-connected psychiatric disorder. Service treatment records do not show any complaints, findings, or diagnoses of sleep apnea. After discharge, an October 1992 VA examination report reflects no complaints or symptoms of sleep apnea. Then, an August 2009 private medical record reflects the Veteran’s report of having problems with sleep since 1991 after returning from Desert Storm. A November 2009 private medical record reflects complaints of sleep problems, snoring, and drowsiness for the past 3 months and a diagnosis of sleep apnea, and a referral for a sleep study. A January 2010 sleep study report reflects a diagnosis of OSA. In 2011, the Veteran underwent a VA PTSD examination. He reported that he continued to try to move on from his divorce, which he described as unexpected and devastating. The examiner diagnosed sleep impairment, noting that the Veteran had experienced sleep difficulties since his divorce in 1991. However, the examiner did not specifically opine that the diagnosed sleep impairment was caused or aggravated by the in-service divorce, and he did not give a rationale for his findings. A March 2012 VA examiner opined that the Veteran's OSA was more likely than not associated with his diagnosed depression. However, the examiner did not provide a rationale for the opinion. A 2014 VA examiner also suggested that the Veteran’s "sleep disturbances" were "secondary to mental health conditions diagnosed as unspecified sleep-wake disorder with a history of mental depression and anxiety.” Again, no rationale was provided for the opinion. There is no other medical opinion of record addressing this claim. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of any currently diagnosed sleep disorder, including OSA, is necessary. 38 U.S.C. § 5103A (d) (2012). The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims file/e-folder. 2. Following completion of the above, afford the Veteran a VA examination to determine the etiology of any currently diagnosed sleep disorder, including OSA. The examiner should review the claims folder and note such review in the examination report or an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed sleep disorder, including OSA, is etiologically related, in whole or in part, to the Veteran's active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed sleep disorder, including OSA, was caused or aggravated (permanently increased in severity beyond the natural progression) by his now service-connected dysthymia. A complete rationale for all opinions rendered must be provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, readjudicate the Veteran's remaining claim for service connection based on the new evidence of record. If the benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.