Citation Nr: 21042827 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 16-48 782 DATE: July 14, 2021 ORDER New and material evidence having been received, the request to reopen a claim for service connection for sleep apnea is granted. New and material evidence having not been received, the request to reopen a claim for service connection for gout is denied. Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is denied. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The claim for entitlement to service connection for gout was dismissed for not being a well-grounded claim in a March 1996 Board decision. The decision was final. 2. Evidence submitted since the Board's March 1996 decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for gout, and therefore, does not raise a reasonable possibility of substantiating the claim. 3. The claim for entitlement to service connection for sleep apnea was denied in a December 2009 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 4. Evidence submitted since the December 2009 rating decision, by itself or when considered with previous evidence of record, is new and relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea. 5. The Veteran had a diagnosis of diabetes mellitus and he is presumed to have been exposed to herbicides during service. Diabetes mellitus is presumptively related to in-service herbicide exposure. 6. The Veteran's does not have an acquired psychiatric disorder, to include PTSD and major depressive disorder that was incurred in or aggravated by his active service. 7. Affording the Veteran the benefit of the doubt, his sleep apnea was caused by or aggravated by his service-connected asbestosis. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence was submitted to reopen a claim for service connection for sleep apnea have been met. U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for whether new and material evidence was submitted to reopen a claim for service connection for gout have not been met. U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) 5. Affording the Veteran the benefit of the doubt, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to March 1984. The Veteran died in April 2019. The appellant is his widow. New and Material Evidence Whether new and material evidence was submitted to reopen a claim for service connection for sleep apnea The Veteran's original claims service connection for sleep apnea were denied in December 2009 because the record did not support that he complained of, sought treatment for, or was diagnosed with sleep apnea during service or within one year of leaving service. 38 C.F.R. § 3.307. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. The Veteran filed a claim to reopen in August 2013. In a June 2014 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) declined to reopen the claim and continued the denial issued in the final prior rating decision. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence added to the record since the December 2009 rating decision include treatment records, Veteran statements, and a September 2016 private opinion. The Board finds this evidence is "new" in that it had not been previously submitted. Moreover, the evidence is "material" because it relates to an unestablished fact necessary to substantiate the Veteran's claim. The private opinion submitted in September 2016 provides unestablished facts in the prior denial under 38 C.F.R. § 3.309(a). The claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claims is addressed in the service connection section below. Whether new and material evidence was submitted to reopen a claim for service connection for gout The Veteran's claim for service connection for gout was dismissed by the Board in a March 1996 decision, because there was no evidence linking the Veteran's diagnosed gout disability to his service and therefore not well grounded. That decision was final. The Veteran filed a claim to reopen in August 2013. In a June 2014 rating decision on appeal, the AOJ declined to reopen the claim and continued the denial issued in the final prior rating decision. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Prior to the March 1996 decision, relevant evidence included medical treatment records, hearing testimony, and an examination. Relevant evidence added to the record since the Board's March 1996 decision include medical treatment records, service treatment records (STRs), and Veteran statements. (See e.g. February 2014 statement.) The medical records show the Veteran was treated for gout, but none of the records provide any nexus or connection to the Veteran's military service. The Veteran contends that his gout started after standing during long shifts in the U.S. Navy. However, these contentions are not new as he previously mentioned he developed these symptoms while in service. (See e.g. June 1994 hearing transcript.) The Board finds that evidence submitted since the March 1996 decision is not material because it does not bear directly or substantially upon the matter of service connection by itself or in connection with evidence previously assembled, and is not so significant that it must be considered to decide the claim fairly. Additionally, the Veteran's contention that his gout was caused from standing during active service is not new evidence as it was already considered by the AOJ and Board in the prior decisions. The claim was initially denied because there was no evidence relating the Veteran's gout to service; none of the recently submitted evidence establishes that fact. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim to reopen is denied. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Diabetes Mellitus Claim The appellant contends that the Veteran's diabetes mellitus is causally related to his service, to include as due to exposure to herbicides. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases, including diabetes, associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption of service connection requires exposure to an herbicidal agent and manifestation of the disease to degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran was diagnosed with diabetes mellitus. Neither the appellant, nor her representative, contend that the Veteran's diabetes was incurred in or caused by his service on a direct basis. VA conceded the Veteran's exposure to herbicides in a September 2020 memorandum based on the Veteran's duty on the Republic of Vietnam's inland waterways and nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The Board finds that the competent, credible evidence supports the Veteran's contention that he was exposed to herbicides during his active service. As stated above, diabetes mellitus is among the diseases listed in 38 C.F.R. § 3.309(e) as a presumptive disease associated with exposure to herbicides. Therefore, the service-connection for diabetes mellitus must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Acquired Psychiatric Disorder Claim The appellant contends that the Veteran has an acquired psychiatric disorder, to include PTSD and major depressive disorder, that was incurred in or related to his active service. The Veteran reported he continued to have trouble sleeping with vivid dreams of what he experienced while in service. (See e.g. February 2014 statement.) The Board concludes that, while the Veteran had a diagnosis of major depressive disorder, recurrent, in full remission, the preponderance of the evidence weighs against finding that his major depressive disorder began during service or is otherwise related to an in-service injury, event, or disease. 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), (d). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran's STRs are silent for any complaints, treatment or diagnosis of any psychiatric disorders. Private treatment records reveal that the Veteran sought treatment for anxiety and depression following the death of his son in 2001. The Veteran reported problems sleeping and stress. An October 2008 record shows that the Veteran was diagnosed with generalized anxiety disorder. The Veteran was given a VA examination in June 2014. The examiner opined that although the Veteran had some symptoms of PTSD, he did not meet the DSM-5 criteria for a PTSD diagnosis. The examiner noted that the Veteran had a diagnosis of major depressive disorder, recurrent, in full remission. The Veteran reported to the examiner that he is seen outside of VA by a private mental health provider. The Veteran further reported that he experienced a lot of memories from when he was aboard a ship during active service in Vietnam. The Veteran complained of sleeping during his lunch break and then also going straight to bed when he returned home from working. However, the Veteran attributed his sleep disturbance with his diagnosed sleep apnea. The examiner opined that "there is no evidence to support that the Veteran's current symptoms associated with his diagnosis of major depressive disorder which is presently in full remission are caused by or related to his military service or any in- service illness, injury or event." The examiner stated the opinion was "based on review of the Veteran's [claims] file found in VBMS with military service treatment records available, CPRS mental health records, subjective reported level of symptoms, DSM-IV and DSM-5 diagnostic criteria, diagnostic clinical interview, objective test results from this examination, and training and experience of this examiner." The Board finds that the Veteran is not entitled to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. Regarding the PTSD claim, although the Veteran's claimed stressor was conceded by VA in January 2013, the Veteran was never diagnosed with PTSD which was confirmed by the June 2014 VA examination. Furthermore, the Board finds the June 2014 VA opinion to be competent and probative in a finding against service connection for major depressive disorder. The record does not demonstrate that there is any evidence to support that the Veteran complained of or sought treatment for any psychiatric disorder during the period of qualifying active service and instead, tends to show the Veteran's depressive disorder was due to other non-service related factors, such as the death of his son. In sum, the Board finds that the preponderance of the evidence, including the Veteran's medical treatment records, demonstrates that the Veteran is not entitled to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine does not apply. The Board acknowledges the Veteran's statements about what he experienced while in service and why he and the Appellant believe the Veteran has a mental health disability that was due to his time in service. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters regarding the nature and etiology of such medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the medical evidence of record. This includes the examination discussed above which the Board find to be adequate because the examiner saw the Veteran in person, reviewed his file, and offered an opinion supported by explanation as to the etiology of the Veteran's mental health condition. Sleep Apnea Claim The Veteran was diagnosed with obstructive sleep apnea in January 1999. The question for the Board is whether his sleep apnea either began during active service or is etiologically related to an in-service disease or injury. The Board finds that there is relevant competent and probative evidence that the Veteran's current obstructive sleep apnea (OSA) was caused by his service-connected asbestosis. Service connection is warranted. 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). The Veteran was given a VA examination in November 2009 for sleep apnea. The examiner provided a negative opinion stating, "Obstructive sleep apnea is predominantly due to a developmentally narrow nasopharyngeal airway with superimposed natural aging (flabby soft tissues in airway) and obesity (fatty soft tissues in the airway). OSA is not caused by or related to asbestosis or asbestos exposure." In March 2016, the Veteran submitted a private opinion. The provider submitting the opinion stated, "Based on my experience, interview with the Veteran on March 17, 2016, review of the medical records, and VA examinations, I disagree with the OSA C&P examiner and feel it's more likely than not the Veterans service connected asbestosis aggravates OSA." The private opinion further discussed the September 2009 VA medical opinion by agreeing with the VA examiner's statement that narrow airways and obesity are some of the causes and contributors to OSA. However, the private opinion then stated, "it is my opinion that service-connected asbestosis also aggravates OSA." The rationale provided stated: The VA respiratory exam dated September 2011 notes wheezing, shortness of breath and chronic congestion as a result of his service-connected asbestosis. All of these symptoms aggravate nighttime breathing. Based on my experience, interview with the Veteran, review of the medical records, and VA examinations, I disagree with the OSA C&P examiner and feel it's more likely than not the Veterans service-connected asbestosis aggravates OSA. Accordingly, the credible, competent, and probative evidence is in relative equipoise that the Veteran's service-connected asbestosis aggravated his obstructive sleep apnea. Thus, affording the Veteran the benefit of the doubt, service connection for sleep apnea will be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. April Snoparsky Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Perkins, Michael 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.