Citation Nr: 21041841 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-31 069 DATE: July 10, 2021 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for asthma is granted. Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran's low back disability began during active service. 2. The Veteran's asthma began during active service. 3. The Veteran's acquired psychiatric disorder began during active service. 4. The preponderance of the evidence of record is against finding that the Veteran has had sleep apnea at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for asthma are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2009 to December 2012, including service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2014 and November 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a May 2021 Board virtual hearing; a transcript is of record. 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). 1. Entitlement to service connection for a low back disability The Veteran contends her low back disability was incurred in service. The Board concludes that the Veteran has a current low back disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA and private records show the Veteran has a current diagnosis of a lumbar sprain. During service, the Veteran was seen for complaints of back pain. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a February 2014 VA medical opinion, finding a lumbar sprain is less likely as not a continuation of the Veteran's back symptoms while on active duty or due to Gulf War environmental exposures. The rationale was that the Veteran does not have a chronic lumbar spine condition. The evidence in favor of the claim includes a January 2020 private medical opinion concluding that the Veteran's lumbar sprain was incurred in or caused by her active duty service. The rationale was that the Veteran had documented back problems during active service, and she reported the same symptoms during her VA examination that diagnosed her with a lumbar sprain. The private examiner noted that sprains tend to be chronic in nature and that the Veteran's condition has persisted, as evidenced by her medical records. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar sprain arose in or is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for asthma The Veteran contends her asthma was incurred in service. The Board concludes that the Veteran has current asthma that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA and private records show the Veteran has a current diagnosis of asthma. During service, the Veteran was seen for respiratory complaints, including a cough, difficulty breathing, and shortness of breath. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a February 2014 VA medical opinion, finding exertional asthma is less likely as not secondary to military service or due to Gulf War environmental exposures. The rationale was that asthma is hereditary and while many factors may trigger asthma symptoms, they are not the cause of asthma. The evidence in favor of the claim includes a January 2020 private medical opinion concluding that the Veteran's asthma was incurred in or caused by her active duty service. In this regard, the private examiner noted that the Veteran had asthma rather than exertional asthma. The rationale for the positive opinion was that the Veteran was persistently treated for shortness of breath while on active duty, as evidenced by her service treatment records. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current asthma arose in or is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for asthma is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for an acquired psychiatric disorder The Board notes that the Veteran's psychiatric disorder was initially claimed as depression; however, the Board has broadened that issue on appeal to include other diagnosed acquired psychiatric disorders to make clear that the issue before the Board is entitlement to a psychiatric disability, regardless of the particular diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends she has an acquired psychiatric disorder related to service, to include her service in Southwest Asia. The Board concludes that the Veteran has a current disability that is related to her active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Treatment records show the Veteran has current diagnoses of PTSD and a depressive disorder. During service, the Veteran was seen for complaints of depression and anxiety. She provided competent and credible testimony as to her service in Southwest Asia, to include her fear of hostile military or terrorist activity. Thus, the question becomes whether the current disability is related to service. The evidence in favor of the claim includes a January 2020 private assessment, diagnosing the Veteran with PTSD and an unspecified depressive disorder and opining that they are at least as likely as not due to stressful events endured during service. In support of the opinion, the private examiner noted the Veteran had no mental health symptoms prior to service, she was seen in service for mental health concerns, and her symptoms have remained static since discharge. Upon review of the record, the Board finds the evidence shows the Veteran's acquired psychiatric disorder arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for sleep apnea The Veteran contends sleep apnea is related to service. 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 Veteran does not have a current diagnosis of sleep apnea 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). In making this determination, the Board has considered the case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. The Veteran's treatment records do not reflect a diagnosis of sleep apnea. During the Veteran's hearing, her representative conceded that she has never had a sleep study and has not been diagnosed with sleep apnea. The representative noted that a claim for sleep apnea was inferred from the Veteran's reports of sleep symptoms related to her acquired psychiatric disorder. See Hearing Transcript, pp. 18. In this regard, the Board notes that the Veteran's claim for service connection for an acquired psychiatric disorder has been granted in the instant decision. To the extent the Veteran may believe she has a current diagnosis of sleep apnea, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The claim for service connection for sleep apnea is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dean, 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.