Citation Nr: 21025848 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-45 998 DATE: April 29, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for sleep apnea secondary to an acquired psychiatric disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had an acquired psychiatric disorder at any time during or approximate to the pendency of the claim. 2. The Veteran is not service connected for an acquired psychiatric disability; his obstructive sleep apnea (OSA) is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea due to a service-connected disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1991 to July 1993. These issues are before the Board of Veterans’ Appeals (Board) on appeal from October 2016 and December 2016 rating decisions of a regional office (RO) of the Department of Veterans Affairs (VA). These matters were previously remanded for additional development in an April 2019 Board decision. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). The Board observes that additional VA treatment records and VA examinations were received following the last adjudication by the RO in the October 2020 supplemental statement of the case (SSOC). The Board has reviewed these records and observes that they are not pertinent to the issues of service connection for an acquired psychiatric disorder and service connection for sleep apnea secondary to an acquired psychiatric disorder addressed in the decision below. Therefore, a waiver is not necessary, and the Board will proceed with adjudication of these issues on appeal. Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In establishing a current psychiatric disability, a mental disorder diagnosis conforming to the DSM-5 criteria must be shown. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). The Veteran contends that his acquired psychiatric disorder is the result of a stressful incident that occurred during a desert simulated field exercise. Specifically, the Veteran described an incident involving an accidental discharge of a cannon. Because it was an unintentional discharge, the Veteran was caught unaware. He reported being thrown to the ground by the loud shockwave and being knocked unconscious. See December 2018 statement in support of claim for service connection for posttraumatic stress disorder (PTSD) and October 2020 VA examination. He also reported that he experienced “many close calls” during active duty as well as witnessing some unfortunate accidents and fatalities. See May 2020 VA 21-4138 statement in support of claim. In this case, the Board finds that the preponderance of the probative evidence is against finding that the Veteran is currently diagnosed with an acquired psychiatric disorder. In an October 2020 VA examination, the examiner, Dr. F. opined that the Veteran’s psychiatric symptoms did not meet the DSM-5 diagnostic criteria for PTSD or any other acquired psychiatric illness. He explained that the results of assessment measures were not consistent with a diagnosis of a psychiatric illness. He reasoned that while the Veteran reported symptoms of depression and anxiety, as well as elevations on the PTSD checklist-5 (PCL-5), he attributed his increased anxiety and low mood to the onset of COVID-19, as well as to the current socio-political climate. Overall, Dr. F. found that the Veteran’s psychiatric symptoms were not severe enough to warrant a clinical diagnosis. Dr. F. reported that he administered the PCL-5, Beck Anxiety Inventory (BAI) and Beck Depression Inventory-2nd Edition (BDI-II). The Veteran’s BDI-II score was in the mild range and his BAI score was in the severe range. Dr. F. noted that the information obtained from the diagnostic testing was based on a self-report assessment and was not sufficient to use alone for diagnostic purposes. He stated that assessment results should be verified for accuracy and used in conjunction with other diagnostic activities and procedures. See October 2020 VA mental health diagnostic study by Dr. F. In forming his opinion that the Veteran’s symptoms did not meet the DSM-5 diagnostic criteria for a mental health disorder, Dr. F. considered that although the Veteran indicated that he experienced some anxiety and depression in the past due to witnessing 9/11 in person as well as worrying about his younger brother’s deployment in Iraq; the Veteran denied experiencing significant levels of anxiety for the past eleven years since moving to Brattleboro Vermont. The Veteran noted that he felt like he “had a new lease on life” since he arrived in Brattleboro. Statements made by the Veteran at this October 2020 VA examination bolster Dr. F.’s assessment that the Veteran does not have a currently diagnosed acquired psychiatric disorder. In particular, the Veteran reported that while in the military, he had “no problems with anxiety or depression.” He noted that he was “straight as an arrow and had no mental health treatment.” The Veteran also stated that he did not develop depression or anxiety following the in-service training incident involving the accidental discharge of a cannon. Post-military, the Veteran reported that he pursued therapy at the VA in 2015 to process any underlying emotional consequences of witnessing 9/11 or due to the anxiety he experienced at the time his brother was in the Army and deployed to Iraq. The Veteran noted that he went for six or seven sessions on and off over a period of five years, but reported that the therapist was frustrated with him coming to therapy and indicated that he did not need to go to therapy to gets things off his chest about his brother and 9/11. Finally, the Veteran also reported that he had never seen a psychiatrist and had never been on medications. See October 2020 VA examination. The Board finds that the Veteran’s statements support and corroborate the conclusion rendered by Dr. F.—specifically, that the Veteran’s psychiatric symptoms are not severe enough to warrant a clinical diagnosis. The Board affords significant probative weight to Dr. F.’s October 2020 determination that the Veteran’s symptoms did not meet the DSM-5 diagnostic criteria for an acquired psychiatric disorder. Dr. F. conducted an in-person examination and took a thorough, detailed history of the Veteran’s pre-military, military and post-military social and family history, occupational and educational history, mental health history, legal and behavioral history, and substance abuse history. Further, Dr. F. administered specific diagnostic testing to assess the severity of the Veteran’s psychiatric symptoms, including the PTSD checklist-5 (PCL-5), Beck Anxiety Inventory (BAI) and Beck Depression Inventory-2nd Edition (BDI-II). Dr. F. provided a clear, well-reasoned explanation for why a mental health diagnosis was not appropriate in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; a threshold consideration is whether the person opining is sufficiently informed). Ultimately, after considering the Veteran’s social, occupational, educational and mental health history over the years, as well as administering diagnostic testing and conducting a mental status examination, Dr. F. found that the Veteran did not exhibit severe enough symptomatology to justify a mental health diagnosis. The Board acknowledges that the record contains two November 2015 mental health consults by R.K., a licensed clinical social worker at the Brattleboro VA Community Based Outpatient Clinic which note generalized anxiety disorder (GAD) as a primary diagnosis. However, these consults with the Veteran were provided in the context of cognitive behavioral therapy and were not formal diagnostic assessments undertaken to ascertain whether the Veteran suffers from a diagnosed acquired psychiatric disorder. Although a diagnosis of generalized anxiety disorder was noted in these 2015 therapy notes by R.K., this diagnosis was not rendered in accordance with the DSM-5 and is based solely on the Veteran’s self-reported history and symptoms which he relayed to the clinical social worker at the time of his therapy. The therapist did not conduct diagnostic testing to ascertain if the Veteran met the DSM-5 criteria for a mental health disorder, nor did she take a detailed account of the Veteran’s pre-military, military, and post-military occupational, social and family history and level of functioning. Significantly, at the Veteran’s initial mental health screening consult with R.K. in December 2014, she did not diagnose him with a mental health disorder. The Board notes that the Veteran was referred to R.K. by his primary care provider after a positive PTSD screen based on a self-report assessment. At this initial screening, the Veteran was asked why he was seeking treatment and he reported that he did not know. He clarified that although he had experienced trauma, notably witnessing the destruction of the World Trade Center on 9/11 directly, he denied any symptoms as a result. R.K. noted that given that the Veteran reported no psychiatric symptoms or distress, psychotherapy would not be indicated, to which the Veteran responded, “that’s good to hear; I agree.” At that point, R.K. gave the Veteran her card and the number for the Veterans’ Crisis Line and noted that he could call if his symptoms worsened. R.K. noted that no further sessions were scheduled at that time. See December 2014 mental health initial screening note. As noted above, in November 2015, the Veteran did seek further mental health treatment from R.K. in the form of cognitive behavioral therapy. It was at this point that R.K. diagnosed generalized anxiety disorder. R.K. discussed treatment planning and how long the Veteran may want to be in therapy. She reported that the likely term of treatment would end in April. At this session, the Veteran discussed how he lacked confidence, wanted to be liked, and desired to meet an appropriate partner. The Veteran reported his intention to withdraw from his current educational program and get into something that he is “really content doing and busy.” He reported a desire to be in school and working. The assessment provided by R.K. found that the Veteran continued to struggle with ambivalence, worries about what it is he should be doing with his life and struggled with isolation. Fifteen days later, the Veteran again met with R.K. At this therapy session, he reported that he had withdrawn from a college program and felt good about it. R.K. noted that the Veteran’s social anxiety issues seemed to have resolved now that he had withdrawn from the program but noted that he had some anxiety about the upcoming holidays. At both November 2015 mental health consults, R.K. assessed the Veteran’s mental status and found that although his mood was anxious, all other areas were normal. The Veteran’s speech, psychomotor behavior and thought content were normal, his affect was appropriate, thought form was coherent, judgment and insight were good, and his attention/concentration and memory were not formally assessed because no problems were exhibited. See November 2015 mental health consults by R.K., L.I.C.S.W. The Board attaches limited probative value to R.K.’s determination that the Veteran suffers from a generalized anxiety disorder. The 2015 GAD diagnosis rendered by R.K. did not utilize the DSM-5 criteria, did not include diagnostic testing, and R.K. did not explain or substantiate how she arrived at the diagnosis. She did not provide supporting facts or concrete examples from the record of instances described by the Veteran to support the GAD diagnosis and the Board notes that the difficulties with anxiety mentioned by the Veteran during the examination are mild. For example, she noted that the Veteran’s social anxiety issues seemed to have resolved now that he had withdrawn from his educational program and in her assessment R.K. merely reported that he struggles with ambivalence and worries about what it is he should be doing with his life. In fact, as described above, at her initial screening assessment with the Veteran in 2014, R.K. did not diagnose him with an acquired psychiatric disorder at all, instead explaining that the Veteran reported no psychiatric symptoms or distress and that psychotherapy was not warranted. In 2015 when she saw the Veteran again, R.K. failed to document specific symptoms beyond an anxious mood that the Veteran exhibited in 2015 that he did not experience during the earlier 2014 screening. Further calling into question R.K.’s diagnosis of generalized anxiety disorder is the Veteran’s report in 2020 that he had not experienced anxiety since moving to Brattleboro eleven years ago and his statement that although he saw a therapist at the Brattleboro VA for approximately six sessions, she basically indicated to him that he did not need to go to therapy. See October 2020 VA examination. Thus, although a diagnosis of generalized anxiety disorder is noted through the years on the Veteran’s active problems list, for the reasons just discussed, the Board attaches little probative weight to this diagnosis rendered by R.K. In conclusion, the Board affords Dr. F.’s 2020 opinion that the Veteran’s symptoms did not meet the DSM-5 diagnostic criteria for an acquired psychiatric disorder more probative weight than the 2015 diagnosis of generalized anxiety disorder provided by R.K. The Board concedes that the Veteran experiences some symptoms of low mood and anxiety; nevertheless, the preponderance of the most probative medical evidence reflects that these symptoms were not severe enough to warrant a clinical diagnosis. The Board has considered the Veteran’s contention that he currently suffers from a diagnosed mental health disorder. However, the question of whether any psychiatric symptoms he experiences warrants a mental health diagnosis is a medical one for which lay statements are not competent. See Young v. McDonald, 766 F.3d 1348, 1352 (Fed. Cir. 2014) (“PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify”); Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). Thus, the Board is unable to attach probative weight to the Veteran’s assertions that he currently suffers from a diagnosed mental health disability. See id. In summary, the Board finds that the preponderance of the probative medical evidence is against finding that the Veteran is currently diagnosed with a mental health disorder in accordance with the DSM-5. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for an acquired psychiatric disorder must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to service connection for sleep apnea secondary to an acquired psychiatric disorder A disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998). The Veteran contends that his sleep apnea is secondary to an acquired psychiatric disorder. See August 2016 Compensation Claim. The Veteran does not contend that his sleep apnea began during service or is etiologically related to service. Here, an August 2016 sleep medicine note shows that results from a Home Sleep Apnea Test were consistent with moderate obstructive sleep apnea. Further, a September 2016 sleep medicine note contains a diagnosis of sleep apnea. See VA treatment records. Therefore, the Board finds that the current disability element of the service connection claim is established. However, as discussed above, the Veteran is not currently service-connected for an acquired psychiatric disorder. Although the Veteran is currently service-connected for bilateral knee and foot disabilities, as well as tinnitus, there is no indication in the record, and the Veteran does not contend that his sleep apnea is secondary to any currently service-connected disability. Therefore, as the Veteran is not currently service-connected for an acquired psychiatric disorder, his claim for service connection for sleep apnea secondary to an acquired psychiatric disorder must be denied as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. In this case, nonduplicative records relevant to the claim for a TDIU were received after the October 2020 supplemental statement of the case (SSOC) was issued, but prior to certification of the appeal to the Board in December 2020. Specifically, a November 2020 VA foot examination which evaluated the severity of the Veteran’s service-connected bilateral foot disabilities was not considered by the AOJ in the October 2020 SSOC. Therefore, because additional pertinent evidence was received after the most recent SSOC but before the appeal was certified to the Board, remand is required for the issuance of an SSOC pursuant to 38 C.F.R. § 19.31(b)(1) and 19.37(a). This matter is REMANDED for the following actions: The Veteran’s claim should be readjudicated based on the entirety of the evidence, and the AOJ should issue an SSOC. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.