Citation Nr: 21042716 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-62 500 DATE: July 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disability clearly and unmistakably existed prior to his active service, and the evidence does not clearly and unmistakably establish that the Veteran's psychiatric disability was not aggravated by his active service. 2. Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran has a sleep apnea disability that is related to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The Veteran's acquired psychiatric disability, to include PTSD and MDD, was incurred during his military service. 38 U.S.C. § § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). 2. The Veteran's sleep apnea disability was incurred during his military service. 38 U.S.C. § § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 1985 to June 1993. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran requested a hearing before the Board. The Veteran's counsel withdrew the request in February 2020. In August 2020, the Board remanded these issues for additional development. 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). The provisions of 38 U.S.C. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2014). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). 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). Acquired Psychiatric Disorder to include PTSD Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (1); see also, 38 U.S.C. § 1154(b). Similarly, if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (3). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM V). 38 C.F.R. § 4.130 (2016). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. The Board notes that this claim was not certified to the Board until October 2020. Accordingly, this claim was pending before the agency of original jurisdiction on August 4, 2014, and DSM-5 applies to this claim. 79 Fed. Reg. 45094 (Aug. 4, 2014). Notably, the Veteran asserts that his PTSD is in part due to being sexually assaulted. The Veteran has been diagnosed as having PTSD related to military sexual trauma (MST). Cases involving allegations of a personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran complains. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). Under § 3.304(f)(3), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f) (3) (2020). In addition, under 38 C.F.R. § 3.304(f) (3), VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. Factual Background and Analysis The Veteran contends that his acquired psychiatric disorder was caused by a personal assault while on active duty in July 1985. The May 1985 report of medical examination and Report of Medical History did not indicate that the Veteran had any psychiatric disability before his enlistment. However, a July 1985 service treatment record states that the Veteran saw a psychiatrist from June 1980 to May 1985. The Veteran stated that he felt fine as of the July 1985 treatment and that he had seen a chaplain on the base since enlisting. A VA psychiatric examination in April 2015 diagnosed PTSD, major depressive disorder, and cannabis use disorder, mild. The examiner also noted an in-service episode where the Veteran was placed on suicide watch due to depression. The Veteran reported an in-service sexual incident in boot camp and noted that since that incident, he had a lot of difficulty with anxiety and depression. The Veteran also noted that he was possibly molested as a child but had no memory of these incidents. However, his father was always sexualizing their relationship, but he again had no memory of anyone ever touching him or abusing him. He requested counseling while in the Navy which occurred about 1 month after his reported incident. The examiner noted that this report did fit the timeline and corroborated the Veteran's history of the incident occurring. The examiner found that the Veteran met the criteria for a diagnosis of PTSD, chronic MDD and mild cannabis use disorder. The PTSD appeared to be the primary diagnosis with the PTSD symptoms related to the stressors he experienced in the Navy with a military sexual trauma and were consistent with the places, types and circumstances of his service. Those stressors were adequate to support the diagnosis of PTSD and were due to his fear of sexual trauma causing fear, horror and helplessness in him. The possibility that he had some other childhood sexual trauma was present which just made him more susceptible to a severe reaction to the trauma in the Navy. In an August 2016 records review, a VA examiner opined that it was less likely than not that the Veteran's PTSD and MDD were due to or the result of the claimed sexual assault while in boot camp in the Navy as there was a lack of evidence to support the claim. The examiner also found that it was less likely than not that the Veteran's PTSD was aggravated by his military service based on a lack of finding of behavioral markers for the claim of MST in service. In a September 9, 2016 report, a VA examiner opined that it was less likely than not that the Veteran's PTSD and MDD were aggravated beyond their natural progression as a result of "mild exogenous depression" noted on discharge from the Navy. In a September 25, 2016 report, a VA examiner noted that the existing evidence was adequate to show that the Veteran had preliminary mental health issues that were adequate to explain his current mental health complaints. His service treatment records noted that he had been treated by a psychiatrist for 5 years prior to his service. His service treatment records demonstrated that he functioned well during his enlistment but may have also had sporadic, mild mental health complaints. The examiner opined that it would be inaccurate to say that his current mental health complaints were caused by the mild exogenous depression noted on discharge and instead it was more likely than not that his current mental health complaints were a result of the same vulnerabilities that led to his depression during his military service. The examiner also stated that the Veteran clearly and unmistakably had "chronic mental health issues" before his enlistment. In a September 2020 records review, a VA examiner opined that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner noted clear and unmistakable evidence of depression, anxiety and trauma-related symptoms due to childhood emotional, physical and probable sexual abuse that preexisted his military service. There was no evidence of PTSD symptoms in service but there was some nervousness and depression noted which was consistent with some waxing and waning of anxiety and depression symptoms during his military service. There was also some situational depression with alleged suicidal ideation within the context of disciplinary action that was mild at separation. This depressive reaction was consistent with the preexisting history of depression as well as an intense emotional reaction to a negative situation. The examiner found that given that the severity of the Veteran's depression has fluctuated over the years, the evidence did not show a permanent increase in symptoms related to his military service. The examiner also found that the Veteran met the criteria for PTSD and MDD but that these diagnoses did not relate to his military service. The examiner noted that there was no marker that was related to the MST event during boot camp as the Veteran did not request counseling in 1985 but rather instead reported a 5-year history of psychiatric treatment prior to enlistment. The examiner noted that while the Veteran had some mild depression and nervousness during his military service, the totality of the evidence clearly and unmistakably documents that this began prior to his military service. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for an acquired psychiatric disorder to include PTSD and MDD is warranted as the Veteran has a current an acquired psychiatric disorder to include PTSD and MDD that is shown to have been permanently aggravated beyond natural progression during service. Notably, it has been determined that the Veteran clearly and unmistakably had a preexisting acquired psychiatric disability prior to his entrance upon active military service. As indicated above, a September 2016 VA medical opinion stated that the Veteran clearly and unmistakably had "chronic mental health issues" before his enlistment while the September 2020 VA examiner noted that the Veteran had clear and unmistakable evidence of mental health issues with a 5 year history of psychiatric treatment 5 year prior to his enlistment. As a result, the presumption of soundness does not apply. See 38 U.S.C. § 1111; VAOPGCPREC 3-2003. The next question is whether the disability is shown to have increased in severity in service. If so, service connection is warranted unless there is evidence that clearly and unmistakably demonstrates that the disability was not aggravated by active service beyond the natural progress of the disorder. There is credible evidence that the acquired psychiatric disability underwent an increase in severity during active service in the form of documented complaints therein and the Veteran's recent lay assertions. Thus, there is a presumption of aggravation that can only be rebutted if it is shown by clear and unmistakable evidence that such increase was temporary or not beyond the natural progress of the disease. In this regard, the Board notes that there are conflicting opinions as to whether the Veteran's pre-existing acquired psychiatric disability was permanently aggravated by his service. As noted above, the December 2015 VA examiner indicated that the Veteran's reported stressors were adequate to support the diagnosis of PTSD and were due to his fear of sexual trauma causing fear, horror and helplessness in him. The examiner also noted that the Veteran's childhood sexual trauma was present which made him more susceptible to a severe reaction to the trauma in the Navy. Additionally, a September 2016 VA examiner also noted that it was more likely than not that the Veteran's current mental health complaints were a result of the same vulnerabilities that led to his depression during his military service. Conversely, the September 2020 VA examiner concluded that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service event, injury or illness. It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). The Board notes that while the September 2020 VA examiner specifically determined that the Veteran's pre-existing acquired psychiatric disability was not permanently aggravated during his period of active service, the examiner noted that there was no marker that was related to the MST event during boot camp as the Veteran did not request counseling in 1985 but rather instead reported a 5-year history of psychiatric treatment prior to enlistment. In contrast, the December 2015 VA examiner specifically noted that the Veteran's childhood sexual trauma made him more susceptible to a severe reaction to the trauma in the Navy and also indicated that the Veteran's PTSD symptoms related to the stressors he experienced in the Navy with a military sexual trauma and were consistent with the places, types and circumstances of his service. The Board notes again that when the claimed PTSD stressor is physical or sexual assault in service, credible supporting evidence may also consist of a medical opinion, based on review of the evidence that the personal assault occurred. 38 C.F.R. § 3.304(f). In this case, the December 2014 VA examiner has rendered such a medical opinion, based on review of the evidence, which seemed credible as he discussed the Veteran's symptoms, history and disabilities at length. As a result of the Veteran's multiple in-service psychiatric complaints and the December 2015 VA examiner's finding that the Veteran's childhood sexual trauma made him more susceptible to a severe reaction to the trauma in the Navy, the Board finds that there is an approximate balance of positive and negative evidence. Accordingly, the Board concludes that the record does not clearly and unmistakably show that the claimed disability was not aggravated beyond the natural progress of the disease. Hence, service connection for an acquired psychiatric disorder to include PTSD and MDD disability is granted. Additionally, a remand for a new VA record review 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. Sleep Apnea The Veteran was diagnosed with severe obstructive sleep apnea following a sleep study in February 2010. In a February 2012 statement, the Veteran's wife noted that the Veteran always snored very loudly while in the Navy and that he would wake up gasping for air, and that the Veteran's shipmates complained about it. As noted in the August 2020 remand, the Veteran has contended that his sleep apnea onset during service and also that it is secondary to his acquired psychiatric disorder. Per the August 2020 remand instructions, the Veteran underwent a VA examination in September 2020. The examiner opined that it was less likely than not that the Veteran's sleep apnea was caused by the claimed in-service event, injury or illness; and was less likely than not caused or aggravated by the service-connected acquired psychiatric disorder. The Board however also notes that the Veteran is service connected for a chronic lumbar strain with degeneration of the intervertebral disc and for associated bilateral lower extremity radiculopathy. Notably, in a December 2019 correspondence, a private physician found that it was at least as likely as not that the Veteran's weight gain and obesity was due to or related to his service-connected chronic lumbar strain and bilateral radiculopathy of the lower extremities. The physician also found that it was at least as likely as not that the Veteran's sleep apnea was secondary to, related to, and/or aggravated by the weight gain and obesity from the service-connected chronic lumbar strain and bilateral radiculopathy of the lower extremities. The physician also found that it was at least as likely as not that without the Veteran's weight gain and his obesity, his obstructive sleep apnea would not have occurred. The physician noted that the Veteran entered service at 200 pounds, left service at 215 pounds and was currently 235 pounds. This was evidence of progressive weight gain and current obesity which chronically developed after the musculoskeletal injuries related to his service-connected disabilities. The Veteran's weight gain resulted from his limitations from his service-connected musculoskeletal disabilities as he was unable to be as active as he was before his injuries and subsequently progressively began to gain weight. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a sleep apnea disability is warranted. As noted above, the Veteran contends that his sleep apnea disability is related to his obesity that resulted from his service-connected orthopedic disabilities. The Board notes that the December 2019 physician provided a positive medical opinion as he again opined that it was at least as likely as not that the Veteran's weight gain and obesity was due to or related to his service-connected chronic lumbar strain and bilateral radiculopathy of the lower extremities and that it was at least as likely as not that the Veteran's sleep apnea was secondary to, related to, and/or aggravated by the weight gain and obesity from the service-connected chronic lumbar strain and bilateral radiculopathy of the lower extremities. Additionally, there is no competent contrary medical evidence of record that indicates that the Veteran's sleep apnea disability was not a result of his obesity which resulted from his service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. Therefore, the positive medical opinion of the December 2019 physician provides the only competent medical opinion as to the relationship between the Veteran's current sleep apnea disability and his service-connected chronic lumbar strain and bilateral radiculopathy of the lower extremities. 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 service-connected chronic lumbar strain and bilateral radiculopathy of the lower extremities disabilities is granted. See 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.