Citation Nr: 21039802 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-14 333 DATE: July 1, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include sleep apnea, is denied. Entitlement to service connection for a traumatic brain injury (TBI), to include residuals, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and dementia, is remanded. FINDINGS OF FACT 1. The competent and probative evidence of record fails to link the Veteran's obstructive sleep apnea to military service. 2. Throughout the appeal the Veteran has had no diagnosis of TBI or residuals thereof. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory condition, to include sleep apnea, 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 a TBI and residuals thereof, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to January 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in September 2017, and last before the Board in July 2018, when it was remanded for further development. In May 2021, the Veteran was informed that the Veterans Law Judge who had conducted his February 2018 Board hearing was no longer at the Board and he had a right to an additional hearing before a different Veterans Law Judge. He was informed that if he did not respond within 30 days, the Board would assume that he did not want another hearing. The Veteran did not respond, and the Board will therefore adjudicate the appeal. Finally, the Veteran was granted service connection for a skin disorder in March 2021; therefore, that issue is no longer before the Board. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an 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). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 1. Entitlement to service connection for a respiratory disorder, to include sleep apnea, is denied. The Veteran contends that his respiratory disorder, to include sleep apnea, is related to his time in service. A January 2021 VA respiratory conditions examination shows the Veteran does not have a respiratory condition. However, a January 2021 sleep apnea examination does show a diagnosis of sleep apnea. During the examination, the Veteran reported a diagnosis of obstructive sleep apnea in 2006; VA treatment records show reports of obstructive sleep apnea starting in 2014. Thus, a current disability is shown. In regard to the second element for service connection, the Veteran's service-treatment records (STRs) do not contain any complaints of, treatment for, or diagnosis sleep apnea, or any other breathing, sleep, or respiratory-related condition. As mentioned above, the Veteran reported being diagnosed in 2006, over 30 years after the Veteran's separation from service. In regards to nexus, a March 2021 VA medical opinion states that the Veteran's sleep apnea is less likely than not related to his service as medical records do not show the Veteran experiencing symptoms that could be related to sleep apnea. In addition, the examiner noted that the descriptions of breathing-related symptoms in service provided by the Veteran are not consistent with an obstructive sleep apnea diagnosis. Furthermore, the Veteran's wife indicated that his breathing-related/sleep apnea symptoms began 20 years prior, which would be over 30 years after the Veteran left service. The Board acknowledges the Veteran's lay statements that his obstructive sleep apnea was incurred in service; however, the Board finds that the question of whether the Veteran's sleep apnea is related to service is of such complexity that a lay person is not competent to provide evidence on this issue of etiology. As there is insufficient probative evidence suggesting the Veteran's sleep apnea is related to service, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for a respiratory disorder, to include sleep apnea, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a TBI, to include TBI residuals is denied. 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 the preponderance of the evidence is against finding that the Veteran currently suffers a TBI, or any residuals, related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Veteran has not identified, nor does the record reflect, any evidence of a diagnosed TBI or residuals thereof. The Veteran was provided a TBI residuals examination in October 2020. The examiner stated that the Veteran denied experiencing a head injury while in service, and that the Veteran did not have, nor had he ever had, a TBI or residuals thereof. Furthermore, the examiner noted the Veteran had multiple strokes from the year 2004-2008, with evidence of memory loss thereafter. Moreover, the only evidence in support of the Veteran's contention that he experienced brain trauma or a head injury in service, and that his memory loss issues are due to the in-service head injury, comes from the Veteran's own vague assertions. In addition, the Veteran has not specified any details regarding the nature of his injury in service. Service treatment records (STRs) do not show any evidence or reports of a TBI or possible symptoms related to a TBI. While the Veteran is competent to report his symptoms and experiences in service, determining the existence and etiology of a TBI and residuals thereof is complex and requires medical knowledge or training. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran's contentions therefore cannot be considered competent evidence in support of his claim. As the Veteran does not meet the cornerstone element of service connection by showing a current diagnosis of a TBI or residuals thereof, an assessment of the remaining elements of service connection is not necessary. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In sum, the competent evidence does not support a current diagnosis of a TBI or any residuals of a TBI. Accordingly, the preponderance of the evidence is against the claim and service connection is denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include PTSD and dementia. The Veteran asserts that he has PTSD, or otherwise his mood and psychiatric symptoms are due to his time in service. The Veteran was provided a VA examination in July 2020 during which the examiner found that the Veteran's symptoms did not meet the criteria for a PTSD diagnosis or warrant any other psychiatric disorder diagnosis. However, the record shows the Veteran has a diagnosis of dementia, but a medical opinion addressing the etiology of the condition has not been obtained. In addition, the July 2020 examiner noted that the Veteran should be referred for a full neuropsychological assessment as well. VA's duty to assist veterans in substantiating their claims requires that a VA examination and medical opinion should be obtained which addresses the etiology of the dementia and whether it is related to service. The matters are REMANDED for the following action: If found necessary to render an opinion, schedule the Veteran for an examination by a VA psychologist or psychiatrist to determine the nature and etiology of each psychiatric disability diagnosed, to include dementia. The examiner must opine as to whether it is at least as likely as not that any psychiatric disability diagnosed, to include dementia, is related to an in-service injury, event, or disease. A complete rationale must be provided for the opinion rendered. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ariasaif, 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.