Citation Nr: 21024402 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-19 548 DATE: April 22, 2021 ORDER Service connection for sleep apnea is denied. Service connection for PTSD, unspecified depressive disorder and adjustment disorder with depressed mood is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran has carried a diagnosis of PTSD related to a confirmed in-service stressor during this appeal; unspecified depressive disorder and adjustment disorder with depressed mood are not separate and distinct disabilities from PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea 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 PTSD, unspecified depressive disorder, and adjustment disorder with depressed mood have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to January 1967. These claims are on appeal from a December 2009 rating decision. The Veteran testified before the undersigned Veterans Law Judge during a March 2014 hearing. A transcript of the hearing is in the Veteran’s eFolder. In August 2014, the Board remanded the issues of service connection for diabetes mellitus, sleep apnea and an acquired psychiatric disability, to include PTSD. A December 2020 rating decision granted service connection for diabetes mellitus, type II; therefore, this issue is no longer before the Board. A January 2021 rating decision granted service connection for other specified trauma and stressor related disorder, evaluated as 50 percent disabling, effective March 2009. Accordingly, the Board has recharacterized the psychiatric claim on appeal, as shown on the first page of this decision. The Board finds that there has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with their adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection With respect to each claim, the Board observes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Service connection for sleep apnea. The Veteran generally contends that he now has sleep apnea due to his active service. During the March 2014 hearing, he stated that he did not have breathing problems while in the military. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence weighs against finding that the Veteran’s sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records, including his hardship discharge examination report, are negative for relevant complaints, symptoms, findings or diagnoses. Thus, they do not support his claim. VA and private post-service treatment records show that he was not diagnosed with sleep apnea until January 2018 when he underwent a VA monitored sleep study. Service incurrence may be rebutted by the absence of medical treatment or diagnosis for the claimed condition for many years after service. Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). Consequently, the Board finds the fact that the first medical evidence of sleep apnea was many years after the Veteran’s service tends to disprove the assertion that his sleep apnea began during active service, or is otherwise related to an in-service injury or disease. The VA and private post-service treatment records are negative for any medical opinion or evidence showing that the Veteran's sleep apnea began during active service, or is otherwise related to an in-service injury or disease. The Board recognizes the Veteran’s general belief that his sleep apnea is related to his active service. However, as a layperson he is not competent to opine as to this complex medical matter. Specialized medical training and expertise are required. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In light of the above, the Board finds that service connection for sleep apnea is not warranted and must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. 2. Service connection for an acquired psychiatric disability other than other specified trauma and stressor related disorder, to include PTSD. In addition to the general requirements for service connection set forth above, 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). The Veteran contends that he has PTSD as a result of stressors during active service consisting of air-sea rescues of downed pilots in the Gulf of Tonkin. See July 2009 VA Form 21-0781. In this regard, the Board observes that the Defense Personnel Records Information Retrieval System confirmed in service stressors of search and rescue missions off the coast of Vietnam in July 1966 and that in July 1966 a pilot was recovered with a badly damaged right arm. The Veteran’s personnel records reflect that he served on the USS Reeves from October 1965 to November 1966. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board first concludes that the evidence is at least in equipoise that the Veteran has had a diagnosis of PTSD during the pendency of the claim or recent to the filing of the claim related to confirmed service stressors. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The evidence in support of a diagnosis of PTSD includes VA treatment records and an October 2018 VA examination report. The October 2018 VA examination report diagnosed PTSD and noted the Veteran’s stressors adequate to support PTSD including rescuing a pilot who had been shot down with his arm “blown off” and attempting to recover another pilot who was not found. Also, a VA psychologist diagnosed PTSD and unspecified depressive disorder based on chart review in December 2018. The 2018 VA examination report and these VA treatment records link the diagnosis of PTSD to his confirmed stressor of serving on a ship that attempted to rescue downed American pilots in the Vietnam era. The evidence against a diagnosis of PTSD includes the October 2019 VA examination report. The examiner reviewed the medical record and evaluated the Veteran, and determined that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria. Rather, the Veteran's diagnosis was other specified trauma and stressor related disorder, and adjustment disorder, with depressed mood. The examiner acknowledged that the Veteran had a past VA diagnosis of PTSD in August 2018. The examiner also acknowledged that the Veteran did report an in-service stressor event in the Gulf of Tonkin, but pointed out that his current symptoms remained sub-clinical for PTSD. The Veteran's current symptoms were consistent with other specified trauma and stressor related disorder, as he did not meet the full criteria for PTSD, due to an in-service stressor event in the Gulf of Tonkin. The examiner also stated that the Veteran's adjustment disorder, with depressed mood, was due to stressors of having multiple health conditions and having to take multiple medications, and was not related to an in-service stressful event. The examiner also stated that the Veteran had been consistent with his symptom reporting to VA healthcare providers and his symptoms had never met the full criteria for PTSD. Therefore, the Veteran would not have met DSM-5 criteria for PTSD during the 2012 [VA Initial PTSD] examination. No mental health diagnosis was made at the time of the 2012 examination. Resolving any doubt in the Veteran’s favor, the Board finds that service connection for PTSD is warranted. Further, given a symptom of PTSD was identified as depression and there is no indication that symptom is distinct from the Veteran’s diagnosis of unspecified depressive disorder or adjustment disorder, with depressed mood, service connection for unspecified depressive disorder and adjustment disorder with depressed mood is also granted. Mittleider v. West, 11 Vet. App. 181, 182 (1998). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.