Citation Nr: 22018261 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 13-28 682 DATE: March 28, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD and/or gastroesophageal reflux disease (GERD), is remanded. FINDING OF FACT The medical evidence of record is persuasively against finding that the Veteran has had a separate diagnosed acquired psychiatric disorder other than PTSD at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to March 1984, April 1985 to March 1992, and April 2003 to March 2004. 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran is currently service-connected for PTSD. The Veteran obtained a March 2012 examination form a private psychologist. After a thorough evaluation, the private psychologist diagnosed the Veteran with PTSD. The private psychologist also diagnosed the Veteran with a sleep disorder due to another mental disorder, sleep apnea, and a sleep disorder due to a general medical disorder. Despite the lengthy evaluation, the private psychologist did not indicate which other mental disorder caused a sleep disorder, or how the psychologist differentiated the sleep disorder symptoms between PTSD, a different mental disorder, and sleep apnea. During a January 2017 VA examination, the examiner diagnosed the Veteran with PTSD and indicated that the Veteran had no other diagnosable mental disorders. The examiner noted that the Veteran's PTSD symptoms included anxiety and chronic sleep impairment. During a January 2019 VA examination, the examiner again determined that the Veteran had no mental health related diagnoses other than PTSD. In a February 2019 supplemental opinion, the examiner noted the Veteran's report of nervous trouble during service, and considered the reports of anxiety and depressive disorder. The examiner opined that terms such as "nervous trouble," "anxiety," and "depressive disorder" are frequently reported by persons who, like the Veteran in this case, experience combat related stress. The examiner further opined that the diagnosis of PTSD includes subcomponents identified by these terms. The examiner concluded that, in this case, the Veteran's PTSD included additional symptoms described by these terms, and the Veteran did not have any additional psychiatric diagnoses. A March 2020 disability determination Social Security Administration (SSA) determined the Veteran was disabled due to affective/mood disorders and trauma and stressor related disorders. To support the determination, SSA noted that from July 2018 to October 2019, VA treatment records reflect treatment for PTSD, generalized anxiety, and other non-related issues. The SSA file contains a September 2018 letter from the Veteran's treating VA physician that indicates the Veteran is currently being treated for PTSD and generalized anxiety disorder. VA treatment records reflect a stand-alone diagnosis of PTSD at some assessments, and PTSD and a mood disorder at other assessments. See, e.g., January 2020 and September 2019 VA Treatment Records. During a July 2021 VA examination, the examiner diagnosed the Veteran with PTSD and indicated the Veteran had no other diagnosed mental disorders. PTSD symptoms include depressed mood; anxiety; chronic sleep impairment; impaired judgment; disturbance of mood and motivation; difficulty establishing relationships; and difficulty adapting to stressful circumstances. In this case, SSA determined that the Veteran has a mood disorder in addition to PTSD based on the September 2018 letter from the Veteran's VA physician indicating he is receiving treatment for generalized anxiety disorder and PTSD. However, the letter provided no rationale to support the diagnosis of PTSD. By contrast, January 2017, January 2019, and July 2021 VA examiners determined the Veteran had a diagnosis of PTSD, but no other diagnosed psychiatric disorders. The best evidence of record is the well-reasoned opinion from the January 2019 VA examiner, opining as to how the Veteran's symptoms are all related to his PTSD diagnosis and not indicative of another psychiatric disorder. The evidence of record is persuasively against a finding of a separate diagnosed psychiatric disorder other than PTSD. For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the medical evidence of record is persuasively against finding the Veteran has a separate diagnosed psychiatric disorder other than PTSD. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability or functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD and/or GERD, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues of entitlement of service connection for obstructive sleep apnea. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran is service-connected for PTSD and GERD. In a March 2012 letter from a psychiatrist addressing the Veteran's PTSD, the psychiatrist noted a high level of sleep apnea among veterans who have PTSD. The psychiatrist noted the Veteran's service-connected PTSD, but did not offer an opinion regarding whether the Veteran's sleep apnea is at least as likely as not related to his service. Additionally, in a July 2020 VA addendum opinion, the examiner noted "an increased association" between GERD and sleep apnea, but the examiner did not address whether the Veteran's sleep apnea is etiologically related to or aggravated by his service-connected PTSD. As a result, the Board remanded the claim for an additional VA opinion in August 2021. The Board instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA opinion that addressed the nature and etiology of the Veteran's diagnosed obstructive sleep apnea, including whether it is caused or aggravated by his service-connected PTSD and GERD. The AOJ obtained an additional October 2021 VA examination and November 2021 addendum opinion. The examiner determined that the Veteran's obstructive sleep apnea is less likely than not related to service or service-connected PTSD and GERD. However, the examiner did not provide an adequate rationale for the determination, and did not address the March 2012 psychiatrist's letter or July 2020 VA addendum opinion as instructed by the Board's August 2021 remand. A remand is needed to obtain an additional addendum opinion to determine if the Veteran's diagnosed obstructive sleep apnea is etiologically related to or aggravated by his service-connected PTSD and/or GERD. The matters are REMANDED for the following action: 1. Obtain VA treatment records since October 2021 and associate them with the claims file. 2. Forward the Veteran's claims file to an appropriate examiner for an opinion addressing the nature and etiology of the Veteran's current diagnosis of obstructive sleep apnea. The examiner should determine whether there is a nearly equal or greater chance that the Veteran's PTSD and/or GERD caused obstructive sleep apnea OR whether the Veteran's PTSD and/or GERD aggravates obstructive sleep apnea (a medically discernible increase in functional impairment e.g. increase in the severity, frequency or duration of symptoms or additional functional impairment beyond the expected baseline impairment). In answering this question, the examiner should specifically address the following: March 2012 letter from a psychiatrist noting a high level of sleep apnea among veterans who have PTSD; and July 2020 VA addendum opinion noting "an increased association" between GERD and sleep apnea. The examiner should explain why or why not the increased associations between GERD and/or PTSD and sleep apnea noted by the examiners may demonstrates why this Veteran's obstructive sleep apnea is caused or aggravated by his service-connected GERD. If an examination is needed, one should be scheduled. A complete rationale must be provided for the opinion. 3. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.