Citation Nr: 21029831 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-46 382 DATE: May 17, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Reopening of the claim of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is granted; the appeal is granted to this extent only. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is remanded. FINDINGS OF FACT 1. The Veteran has not had sleep apnea at any time during or approximate to the pendency of the claim. 2. The Veteran did not perfect an appeal to the March 2006 decision, no new and material evidence was received within the period for appeal, and no relevant official service department records have been added to the record since the March 2006 decision. 3. Evidence added to the record since the March 2006 decision is new, pertains to the grounds of the previous denial, and raises a reasonable possibility of substantiating the Veteran's claim to entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1979 to October 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 and a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in September 2018, where it was remanded for additional development. It now returns to the Board for adjudication. Entitlement to service connection for sleep apnea. The Veteran seeks entitlement to service connection for sleep apnea. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 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). The record does not show that the Veteran has a present diagnosis of sleep apnea. After complaining of snoring and sleeping problems, the Veteran underwent sleep studies in December 2012 and May 2013. Both studies concluded that she did not have a diagnosis of sleep apnea. Since then, the Veteran's VA treatment records consistently show that she is listed as not having sleep apnea, and do not contain any indication that any sleep problems she does have is due to, or related to, sleep apnea. Additionally, the Veteran has not contended that she experienced sleep problems in service, and the existing service treatment records do not identify any complaint of, or treatment for, sleep problems in service. The Board acknowledges that the Veteran has often reported experiencing sleep problems. Her reports of problems, however, are consistently in the context of psychological treatment, where the Veteran reports sleep problems caused by anxiety or nightmares. The Veteran's psychological treatment records contain no indication that the Veteran's sleep problems are not, in fact, caused by something other than psychological problems. The Veteran completed a home sleep study in December 2012. See December 24, 2012, VA Neurology Consult Addendum. The reviewing physician indicated that the Veteran had some symptoms of sleep disordered breathing, but was not diagnosed with sleep apnea. A polysomnogram was conducted clinically in May 2013. The Veteran was again found not to have obstructive sleep apnea, but was noted to have obesity and upper airway resistance syndrome. May 14, 2013, Polysomnography Consult Note Addendum. The Board finds that the preponderance of the evidence shows that Veteran does not have a current diagnosis of sleep and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, obesity is not itself a disability for which service connection may be granted. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018); VAOPGCPREC 1-2017 (Jan. 6, 2017). At most, the Veteran has a current disability of an upper airway resistance syndrome. A claim for compensation for a disability includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board will consider whether the Veteran is entitled to service connection for the upper airway resistance syndrome. The Veteran has not offered a plausible basis on which she believes her disability is in anyway related to service. The claim originates from a January 2014 letter to the Winston-Salem RO which does not relate any factual basis to believe that the disability is related to service. The Veteran was provided notice of what was necessary to prove a claim of service connection by a May 2014 letter. She returned a notice response, in June 2014, that she had provided all remaining information or evidence or had no information or evidence to provide. She offers no argument at all in either her October 2014 Notice of Disagreement or December 2015 VA Form 9. Having reviewed the Veteran's service treatment records and her current treatment records, the Board finds there is no indication that the upper airway resistance syndrome may be associated with any incident of service. In the absence of any lay or medical evidence tending to show the disability may be related to service, the preponderance of the evidence is against a finding that the current disability is related to service. 38 C.F.R. § 3.303(d). The benefit of the doubt rule therefore does not apply, and the Board concludes that the Veteran is not entitled to service connection for sleep apnea or an upper airway resistance syndrome. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Whether reopening of the claim of service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is warranted. The Veteran seeks service connection for an acquired psychiatric disorder, originally claimed as posttraumatic stress disorder (PTSD) due to, in part, military sexual trauma (MST). The medical evidence of record suggests that the Veteran may have an acquired psychiatric disorder other than PSTD, and the Board will therefore characterize her claim for PTSD as one for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 7 (2009). I. Finality of Previous Decision The Veteran previously filed a claim for service connection for PTSD, based on the same contended in-service stressors, including MST, claimed in this appeal. The VA previously denied the claim in a March 2006 rating decision. The Veteran timely filed a March 2006 Notice of Disagreement (NOD), to which the RO filed a December 2006 Statement of the Case (SOC). The Veteran was notified of the December 2006 decision and her procedural and appellate rights in December 2006 at her address of record. The Veteran did not, however, perfect her appeal by filing a VA Form 9 within sixty days of the promulgation of the December 2006 SOC. No additional evidence was received within this time, either. But in September 2018, the Board remanded this matter to obtain the Veteran's complete service treatment, personnel, and unit records. New official service department records were then associated with the claims file. The Board considered whether these records are relevant, which would toll the finality of the March 2006 rating decision under 38 C.F.R. § 3.156(c). "Relevant" official service records under 38 C.F.R. § 3.156(c) are defined as records that both "speak to the basis for the VA's prior decision" and "tend to prove or disprove a material fact" or may "aid in substantiating the claim." Kisor v. Wilkie, 969 F.3d 1333, 1340-41 (Fed. Cir. 2020) (internal citations and quotation marks omitted). After reviewing the records, the Board finds that they do not speak to, or tend to prove or disprove, a fact or an issue contested in this matter. They do not confirm (or contradict) the Veteran's contended in-service aggressors. They do not contain in-service treatment records which would speak to an in-service diagnosis or treatment for any acquired psychiatric disorder. They do not contain records of performance that would potentially constitute supporting evidence of MST under 38 C.F.R. § 3.304(f)(5). In other words, the records do not "tend to prove a fact that is of consequence" and, therefore, the Board concludes that they are not relevant as defined by 38 C.F.R. § 3.156(c). Accordingly, the association of service records does not toll the finality of the March 2006 rating decision. The March 2006 rating decision denying service connection for PSTD is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. II. Reopening Generally, a claim which has been denied in an unappealed rating decision may not be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary of Veterans Affairs shall reopen the claim and review the former disposition of the claim. In the prior final decision, the RO considered entitlement to PSTD under the criteria set out by 38 C.F.R. § 3.304(f). In denying the claim, the RO concluded that the Veteran was unable to verify in-service stressors with supporting evidence. Although noting that the Veteran had screened positive for PTSD, the RO did not actually adjudicate the question of whether the Veteran actually had a present diagnosis of PTSD, or any other acquired psychiatric disorder, either. Since the prior decision, the Veteran has submitted a January 2016 private medical examination by Dr. H. H. that diagnoses the Veteran with major depressive disorder. This diagnosis raises the possibility of entitlement for service connection for an acquired psychiatric disability under a different theory of entitlement, and is therefore material. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Additionally, the Veteran has submitted a February 2013 private medical examination by Dr. L. F. diagnosing the Veteran with PTSD under the then-Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., and a lay statement by her husband stating that the Veteran's behavior changed markedly following service. These pieces of evidence also go to unestablished facts necessary to substantiate the claim. The Board concludes that the criteria for reopening the claim for service connection are met. 38 C.F.R. § 3.156(a). REASONS FOR REMAND A. PTSD To demonstrate entitlement to service connection for PTSD, 38 C.F.R. § 3.304(f), in addition to the normal criteria for service connection, there must be 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 the in-service stressor; and, credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Section 4.125(a) requires the diagnosis to conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Under 38 C.F.R. § 3.304(f)(5), evidence other than the Veteran's STRs may be used to corroborate the Veteran's account of the stressor including but not limited to records from law enforcement, mental health professionals, physicians, and statements from family members. Evidence of any in-service or post-service behavior changes, including but not limited to a request for transfer, deteriorating work performance, substance abuse, depression, anxiety, panic attacks, or unexplained economic or social behavioral changes, may provide credible evidence of the stressor. If a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Specifically, 38 C.F.R. § 3.304(f)(5), allows Veterans claiming PTSD from an in-service military assault to submit evidence other than in-service medical records to corroborate the occurrence of a stressor, and this includes medical opinion evidence. Id. at 1382. Here, the Veteran submitted in November 2020 a lay statement by her husband, who stated that he knew her well both before and after service, and that she experienced substantial behavioral changes after service, including anger, nightmares, and reduced social contact. He also contends that she stated to him she experienced MST in service. Additionally, although the Veteran was not formally adjudicated as having a present diagnosis of PTSD, the record is replete with examples of the Veteran testing positive for PTSD screens. The February 2013 private examination diagnosing the Veteran with PTSD is suggestive, but not conclusive, as it was not conducted using the DSM-5 now required by regulation. The Board finds that in light of the evidence of record repeatedly showing that the Veteran may have PTSD, in conjunction with the Veteran's assertions of in-service stressors of MST and the November 2020 lay statement, and the other evidence of record, the Veteran is entitled to a VA examination to determine the nature and etiology of any acquired psychiatric disorder, including PTSD. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is otherwise insufficient for the Board to fully adjudicate the claim and the Board will, therefore, remand the matter. B. Major Depressive Disorder The Veteran submitted a January 2016 private medical examination and opinion by Dr. H. H., who diagnosed the Veteran with major depressive disorder. Dr. H. H. also opined that it was more likely than not that the Veteran's major depressive disorder more likely than not began during service. The probative weight of medical opinion evidence is based on, among other things, the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for the medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the January 2016 private medical examination was provided by a medical professional who possesses the education, training, and expertise to conduct the examination. The Board finds that to the extent that the January 2016 examination diagnoses the Veteran with major depressive disorder, the medical opinion is entitled to substantial weight in establishing a present diagnosis of a psychiatric disorder for the Veteran. The Board does not, however, assign any weight to the January 2016 examination's opinion that the Veteran's major depressive disorder more likely than not began during service. The opinion is conclusory and does not provide an explanation connecting the data with the conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez, 22 Vet. App. at 301. Although Dr. H. H. incorporates a medical article concerning a connection between military service and depression, Dr. H. H. only noted that the article supported the contention that military service may affect depression, without reaching a conclusion about causality. The Veteran also submitted the full article itself, but the article does not speak to the facts and circumstances of the Veteran's case and is not entitled to weight in proving a nexus between the Veteran's depression and service. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The Board find that in light of the Veteran's diagnosis of major depressive disorder, in conjunction with the Veteran's contentions of a variety of in-service incidents, including MST, that may have caused this depression, along with the other evidence of record, the Veteran is entitled to a VA examination to determine the nature and etiology of any acquired psychiatric disorder, including major depressive disorder. McLendon, 20 Vet. App. at 81. The evidence of record is otherwise insufficient for the Board to fully adjudicate the claim and the Board will, therefore, remand the matter. The matter is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner must opine whether the evidence of record, including the Veteran's lay statements, statements made by the Veteran's husband, and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. Does the Veteran have any other acquired psychiatric disorder, to include major depressive disorder? If so, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's contentions of in-service incidents as discussed above. The examiner is reminded that verification of stressors is only required for a claim for PTSD and not any other acquired psychiatric disorder. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael D. Wagner, 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.