Citation Nr: 21031230 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-38 110 DATE: May 20, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to a compensable disability evaluation for bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorders are not secondary to service-connected right shoulder disability and are not otherwise related to an in-service injury or disease. 2. 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. 3. The Veteran's bilateral pes planus is manifested by pain relieved by arch supports. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. 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. 3. The criteria for a compensable rating for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1970, and March 1971 to July 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2013 and April 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The claims were previously remanded by the Board in May 2020. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304 (b)(1). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 U.S.C. § 1154; 38 C.F.R. § 3.306 (a). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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). 1. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, The Veteran asserts that he is entitled to service connection for an acquired psychiatric disorder. Alternatively, the Veteran testified at the January 2020 Board hearing that he has an acquired psychiatric disorder that is secondary to his service-connected right shoulder disability The Board concludes that, while the Veteran has current diagnoses of bipolar disorder and MDD, the preponderance of the evidence weighs against finding that the Veteran's psychiatric disorders began during service or are otherwise related to an in-service injury, event, or disease. Additionally, the Board concludes the preponderance of the evidence is against finding that the Veteran's psychiatric disorders are proximately due to or the result of, or aggravated beyond natural progression by service or a service-connected disability. Service treatment records show the Veteran's service entrance report of medical examination did not include any notations for a preexisting psychiatric disorder. The Veteran marked "yes" to depression or excessive worry on an August 1986 report of medical history. However, on his service separation report of medical examination from June 1987, the Veteran did not indicate having any psychological symptoms or disorder. Post-service VA treatment records from November 1999 note the Veteran was slightly depressed but asymptomatic. Treatment notes from February 2004 indicate the Veteran was diagnosed with depressive disorder, and was prescribed Paroxetine. An April 2007 treatment note states the Veteran had a prior medical history significant for depression. In April 2012, the Veteran related that he had an increasing depressed mood, and his VA psychologist diagnosed depressive disorder and borderline personality disorder. The Veteran continued to seek psychiatric treatment in August 2014. During a therapy session, he reported having episodes of suicidal ideation during service, as well as an incident when he was punished for not following orders. The Veteran stated that his depressive symptoms continued but he did not reach out for help due to feelings of shame, guilt, and embarrassment. At an August 2016 VA examination, the Veteran was diagnosed with bipolar disorder. The Veteran reported that his bipolar disorder was present since high school, and he described periods of manic episodes lasting three to five days. He stated he had to keep his symptoms a secret during service to avoid being demoted or discharged from the military. The VA examiner opined that it was less likely than not that the Veteran's bipolar disorder is related to his military service because he reported onset of symptoms prior to enlistment. As rationale, the VA examiner explained that the Veteran had a relatively high level of occupational functioning as indicated with respect to his emotional functioning. He further stated that the Veteran's report of his previous work history suggests that he was able to fulfill his work responsibilities without much impairment from bipolar disorder, and that he only retired from work after suffering multiple heart attacks. The VA examiner also opined that the Veteran's bipolar disorder, which clearly and unmistakably existed prior to service entry, was not aggravated beyond its natural progression by military service. He explained that although the Veteran stated he was not informed of his bipolar disorder diagnosis prior to entering the military, his behavior was severe enough to be noticed by family and friends, which prompted his parents to have him evaluated by a doctor. The VA examiner noted that when asked whether his bipolar symptoms impacted his performance in the military, the Veteran stated it only made it difficult for him to refrain revealing classified information, but confirmed he never inappropriately disclosed information and denied having any other difficulties due to his bipolar disorder. Therefore, the VA examiner concluded that the Veteran's bipolar disorder was not aggravated by his military service. The Veteran was afforded another VA examination in September 2020, during which he was only diagnosed with MDD. He again reported experiencing manic episodes prior to entering the military, but described having overall good social functioning. Following service, the Veteran reported having a few different jobs until suffering multiple heart attacks in 2008, which rendered him unable to work. The VA examiner opined that it was less likely than not that the Veteran's MDD was incurred in or caused by military service. As rationale, the VA examiner explained that although the Veteran indicated experiencing depression and excessive worry in a 1986 service treatment record, there was no other documentation of these symptoms at service discharge. He noted that the Veteran did not require psychiatric treatment until several years after service. The VA examiner also opined that the Veteran's MDD is not proximately due to, the result of, or aggravated by his service-connected right shoulder disability, as there is a lack of documentation to indicate an etiological relationship or aggravation beyond natural progression. Additionally, the VA examiner stated that it was unlikely that the Veteran would have exhibited bipolar disorder prior to entering the military and not have required medication to treat this severe form of psychopathology. Post-service medical records show the Veteran was noted to be slightly depressed in 1999, 13 years after service separation, and was diagnosed with depressive disorder in 2004, 18 years after service separation. The Board notes that at no point in the post-service treatment notes did the Veteran or his physicians associate his depression with either his military service or his right-shoulder disability. Further, the 2016 and 2020 VA examiners opined that the Veteran's acquired psychiatric disorders were not related to or aggravated by service or his service-connected right shoulder disability. We find the examiners' opinions probative, because they were based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the VA examiners disagree as to whether the Veteran had a bipolar disorder diagnosis that preexisted service. The Board finds that there is no clear and unmistakable evidence that the Veteran's bipolar disorder diagnosis preexisted service, nor was such diagnosis aggravated during service. The Veteran has not provided any pre-service medical records showing a bipolar disorder diagnosis prior to service, nor was he noted to have a diagnosis of or treatment for bipolar disorder during service. He has indicated that he was evaluated by a physician prior to service, but also states he was not informed of a bipolar disorder diagnosis prior to service. Further, while he reports feeling shame and guilt regarding his psychiatric symptoms, at worst, he reported that his claimed psychiatric disorder only made it more difficult to not divulge classified information. Even if the Veteran was afforded the benefit of the doubt that he did in fact have a bipolar disorder diagnosis that preexisted service, both VA examiners opined that it was not aggravated by service. The Veteran believes his acquired psychiatric disorder is related to service and/or service-connected disability. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue, as it is medically complex and requires specialized knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical examination reports and opinions. Accordingly, entitlement to service connection for an acquired psychiatric disorder is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for sleep apnea The Veteran contends that he is entitled to service connection for sleep apnea. In his June 2015 Notice of Disagreement (NOD), the Veteran stated that his sleep apnea symptoms began during service, but because he did not want to jeopardize his military career, he did not seek medical attention. 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 diagnosis of sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records show the Veteran reported having frequent trouble sleeping on an August 1986 report of medical history. However, there is no other indication within service medical records, including the Veteran's separation examination, that he had any symptoms of, treatment for, or diagnosis of a sleep disorder. Post service treatment notes show the Veteran reported having fair sleep in May 2006. In August 2009, treatment notes indicate the Veteran had a history suspicious of sleep apnea in the past, but the Veteran failed to follow up for a sleep study after an October 2007 visit. A sleep study report from December 2009 shows the Veteran was diagnosed with mild obstructive sleep apnea. Treatment notes from March 2010 indicate he was prescribed a continuous positive airway pressure (CPAP) machine. The Veteran was afforded a VA examination in November 2020, during which the Veteran reported that in 2009 he had difficulty sleeping, and that his wife told him that he snored loudly. The VA examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by military service. As rationale, the VA examiner noted that the Veteran's symptoms did not onset until well after service, he was not diagnosed until 2009, and there is no objective evidence in the records provided that the Veteran was diagnosed during service. The Board acknowledges the Veteran's report in his June 2015 NOD that his symptoms onset during service, and he did not seek treatment in order to preserve his eligibility to remain in service. However, he later provided a contradictory statement at the November 2020 VA examination, when he reported that his symptoms began in 2009. Consequently, the Board gives more probative weight to the VA examiner's opinion that the Veteran's sleep apnea, onset and diagnosed more than 20 years after service separation, is not etiologically related to his military service. We find the examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains a clear conclusion and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304 (2008). Accordingly, entitlement to service connection for a sleep apnea is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56 (1990). Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 3. Entitlement to a compensable disability evaluation for bilateral pes planus The Veteran contends that he is entitled to an increased rating for service-connected bilateral pes planus disability. The Veteran's bilateral pes planus is rated as zero percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board finds that the preponderance of the evidence is against a compensable rating for bilateral pes planus. The Veteran was afforded VA examinations in September 2013 and November 2020, during which he reported having bilateral foot pain. The Veteran also indicated that he experiences flare-ups that occur with weight-bearing and ambulation. The examiners stated that the Veteran has poor tolerance for standing and ambulating due to pain in both feet. However, the Veteran was also noted to wear orthotics with arch supports, which relieved symptoms for both feet. He was not observed to have weight-bearing line over or medial to the great toe, inward bowing or spasm of the Achilles tendon, marked deformity or pronation, swelling, or characteristic calluses. The Board acknowledges the Veteran's lay reports of pain, including during flare-ups. However, even considering the Veteran's lay reports of symptoms, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating bilateral or unilateral moderate acquired flatfoot. As noted above, the veteran's symptoms are relieved by arch supports, which is consistent with a noncompensable rating. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. (Continued on the next page) Here, the Veteran's bilateral foot disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code. In conclusion, the Board finds that the preponderance of the evidence is against a compensable rating for bilateral pes planus, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.