Citation Nr: 21028800 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-33 354 DATE: May 12, 2021 ORDER Entitlement to service connection for depression is granted. Entitlement to service connection for sleep apnea syndrome is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran has an acquired psychiatric disorder to include depression that is related to his service. 2. Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran has sleep apnea that is related to his acquired psychiatric disorder. CONCLUSIONS OF LAW 1.The criteria for entitlement to service connection for an acquired psychiatric disorder to include depression disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The criteria for entitlement to service connection for a sleep apnea disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the US Marine Corps from April 1972 to April 1974. This matter is on appeal to the Board of Veterans' Appeals (the Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the Veteran's claims for additional development. A December 2020 rating decision granted service connection for diabetes mellitus. Therefore, this claim is no longer on appeal before the Board. Service Connection Laws and Regulations 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. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include psychosis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as psychosis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Depression After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for an acquired psychiatric disorder to include depression is warranted. As there is a current diagnosis of depression, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Having reviewed the record, the Board finds there is at least an approximate balance of evidence as to whether the Veteran has a current acquired psychiatric disorder disability that is related to the Veteran's service. The Board notes that there are conflicting opinions as to whether the Veteran has a current acquired psychiatric disorder that is related to his service. In an April 2015 correspondence, a private physician opined that it was more likely than not that the Veteran's acquired psychiatric disorder began in service, continued uninterrupted to the present, and was aggravated by his tinnitus, sleep apnea, diabetes, hypothyroidism, spot on his lung, high blood pressure, bilateral knees, vision, hiatal hernia, gout and gastroesophageal reflux disease. In contrast, a December 2019 VA examiner opined that it was less likely than not that the Veteran's depression was incurred in or caused by the claimed in-service injury, event, or illness as there were no reports of mental health issues during service and no consistent reports of ongoing mental health problems since service. However, the December 2019 VA examiner's rationale failed to address the statements of P.B., the Veteran's wife, and C.B., the Veteran's sister-in-law. Both reported knowing the Veteran since grade school and both reported that prior to service, the Veteran was a happy, outgoing, and social person. Both P.B. and C.B. noted a change in the Veteran after his separation from service as the Veteran was distant, easily frustrated, easily angered, had difficulty expressing himself and had lost contact with most of his friends and was anxious around crowds. The December 2019 VA examiner also did not specifically address whether the Veteran's acquired psychiatric disorder was caused or aggravated by a service-connected disability to include diabetes. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current acquired psychiatric disability that was incurred in the Veteran's service. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for an acquired psychiatric disorder disability is granted. See 38 U.S.C. § 5107(b). Sleep Apnea After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for sleep apnea is warranted. As there is a current diagnosis of sleep apnea, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The evidence demonstrates that the Veteran has current sleep apnea disability that was the result of his now service-connected acquired psychiatric disorder disability as a December 2019 VA examiner opined the Veteran's sleep apnea was at least as likely as not proximately due to or the result of the Veteran's depression. There is also no competent contrary medical evidence of record that indicates that the Veteran's sleep apnea disability was not secondary to his now service-connected acquired psychiatric disorder disability. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a sleep apnea disability as secondary to his now service-connected acquired psychiatric disorder disability is granted. See 38 U.S.C. § 5107 (b). James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.