Citation Nr: A25040887 Decision Date: 05/05/25 Archive Date: 05/05/25 DOCKET NO. 240523-445646 DATE: May 5, 2025 ORDER Readjudication of the claim of service connection for an acquired psychiatric disability, to include anxiety and depression, is warranted and the petition to readjudicate is granted. Service connection for obstructive sleep apnea is denied. REMANDED Service connection for an acquired psychiatric disability, to include anxiety and depression, is remanded. FINDINGS OF FACT 1. New evidence was received after the October 2022 rating decision that is relevant to the issue of entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression. 2. The evidence of record persuasively weighs against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease, to include in-service exposures. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim of service connection for an acquired psychiatric disability, to include anxiety and depression, have been met. 38 C.F.R. § 3.156(d). 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1973 to September 1979. In an October 2022 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for anxiety and depression. In February 2023, the Veteran submitted VA Form 20-0996 Request for Higher-Level Review. In a May 2023 higher-level review rating decision, the AOJ denied service connection for anxiety and depression. In an April 2023 rating decision, the AOJ denied service connection for sleep apnea. In July 2023, the Veteran filed a Supplemental Claim seeking service connection for anxiety and depression and sleep apnea. In a March 2024 rating decision, the AOJ determined that new and relevant had not been received to warrant readjudication of the claim of service connection for anxiety and depression, and service connection for sleep apnea was denied. In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. With regard to sleep apnea, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As the psychiatric claim is being remanded, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). New & Relevant Evidence As discussed below, the Board finds that the Veteran has submitted evidence in support of his claim of service connection for anxiety and depression that is new and relevant and warrants readjudication of the issue. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). The question in this case is whether the Veteran submitted evidence after the prior final denial of his claim of service connection for anxiety and depression and if so, whether that evidence is new and relevant to his claim. In April 2022, the Veteran filed a claim of service connection for anxiety and depression, which was decided in October 2022. Of record were service treatment records, post-service treatment records, a June 2022 C&P examination with a negative etiological opinion on a direct basis, and a September 2022 C&P negative etiological opinion on a secondary basis. In the October 2022 rating decision, the AOJ denied service connection for anxiety and depression on a direct and secondary basis. In February 2023, the Veteran submitted VA Form 20-0996 Request for Higher-Level Review. In a May 2023 higher-level review rating decision, the AOJ denied service connection for anxiety and depression. In July 2023, the Veteran submitted a supplemental claim of service connection for anxiety and depression. In a March 2024 rating decision, the AOJ determined that new and relevant evidence had not been received to warrant readjudication of the claim. A December 2023 VA treatment record reflects that the Veteran exhibited tangential speech and was insistent that the Air Force had caused all of his medical problems. 03/26/2024 CAPRI at 471. VA treatment records reflect anxiety and depression. Such evidence may prove or disprove an element of service connection, specifically a nexus, and thus readjudication of the claim is warranted. Thus, readjudication of the claim of service connection for anxiety and depression is warranted. 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; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. The question for the Board is whether the Veteran has a sleep apnea 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, while the Veteran has a diagnosis of sleep apnea, the persuasive evidence of record weighs against finding that this began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131. Service treatment records do not reflect any complaints of or treatment for sleep apnea, to include symptomatology related thereto. A June 1979 Report of Medical Examinations does not reflect a diagnosis of sleep apnea, or any symptomatology related thereto. The accompanying Report of Medical History completed by the Veteran reflects that he checked the 'No' box for 'frequent trouble sleeping.' In May 2013, the Veteran filed a claim of service connection for sleep apnea; he asserted that it began in January 2003. VA treatment records were associated with the claims folder which reflect that in February 2013 the Veteran sought treatment for sleep apnea. He reported a diagnosis of sleep apnea in March 2007; he tried using a CPAP but was never able to use it fully. He reported that he snores and witnessed apnea and also reported nocturia, dry mouth, and being tired on awakening. In April 2013, he underwent a sleep test which showed severe obstructive sleep apnea. 08/06/2013 CAPRI. In an October 2013 rating decision, service connection for sleep apnea was denied on a direct basis. In April 2022, the Veteran submitted a supplemental claim of service connection for sleep apnea. In an April 2023 rating decision, service connection was denied for sleep apnea on a direct basis. In July 2023, the Veteran filed a supplemental claim of service connection for sleep apnea. A July 2023 Toxic Exposure Risk Activity (TERA) Memorandum reflects evidence of non-deployment related exposure consistent with the circumstances of the Veteran's service. His military occupational specialty (MOS) was avionics aerospace ground equipment specialist/electronic warfare systems specialist. He had possible exposure to lead, mercury, cadmium, and other elements including rare earth elements used in electronic equipment. 07/27/2023 other. In March 2024, the Veteran underwent a C&P examination wherein the examiner diagnosed obstructive sleep apnea. He reported a date of onset around 1989; 10 years after service he noticed that he was napping a lot, and he was told he snored and would wake up choking. The examiner opined that obstructive sleep apnea is not caused by toxic exposure or his MOS. The primary pathological event in obstructive sleep apnea is the partial or complete closure of the pharyngeal airway during sleep in an individual with a widely patent airway during wakefulness. This yields an apnea or hypopnea with resulting hypoxia and hypercapnia, and most often requires an arousal to terminate the event. These events occur in a repetitive manner during sleep, yielding intermittent hypoxia and sleep fragmentation. Obstructive sleep apnea is a disorder that is characterized by obstructive apneas, hypopneas, and/or respiratory effort-related arousals caused by repetitive collapse of the upper airway during sleep. Obstructive sleep apnea is the most common sleep-related breathing disorder. As detailed above, per the Veteran, he has reported sleep apnea symptoms beginning in 1989 but has also reported in his original claim that sleep apnea began in 2003, and he reported to a treating provider that sleep apnea was initially diagnosed in 2007. As detailed, the medical evidence of obstructive sleep apnea is documented in 2013. The March 2024 examination report reflects that the Veteran reported sleep apnea symptoms 10 years after separation from service. As detailed, service treatment records are negative for any complaints or treatment for sleep apnea and sleep problems. There is no assertion that the Veteran experienced any sleep apnea symptoms during service. Thus, there is a lack of continuity of symptomatology from separation from service and his initial complaints of symptoms and diagnosis. Moreover, as detailed, the March 2024 C&P examiner proffered a negative etiological opinion with regard to his TERA exposures and MOS. Such opinion is probative as it is based on an accurate medical history, to include the lay assertions of the Veteran and contain clear conclusions and support data for the negative etiological opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no contrary opinion of record. While the Veteran may believe his sleep apnea is due to service, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/anatomical relationships/pathology/interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran is competent to report his recollections and symptomatology regarding sleep apnea. However, there was still an over 10-year lapse in time between the time he reported his symptoms and his active service, and many more years until an ultimate showing of sleep apnea. ? Accordingly, the weight of the evidence is against a finding that his sleep apnea manifested during service and is against a finding that his sleep apnea is due to service to include in-service exposures. Indeed, the overall conclusions of the trained medical examiner was that his sleep apnea is not due to in-service exposures. Therefore, the claim of service connection is denied. The Board acknowledges that the VA Form 10182 lists sleep apnea secondary to anxiety and depression. Notwithstanding that to date service connection has not been established for anxiety and depression, at no point did the Veteran assert in his original claim or supplemental claims that his sleep apnea is due to anxiety and depression and has not otherwise asserted in lay statements or treatment records that his sleep apnea is due to anxiety and depression. This theory of entitlement is deemed to have been impliedly denied in the rating decision on appeal. As no specific assertions or medical evidence was provided prior to the rating on appeal, no duty to develop this theory was triggered. The record at present provides no basis for an award on a secondary basis. REASONS FOR REMAND The Veteran has claimed service connection for anxiety and depression due to service and/or secondary to his service-connected disabilities. This issue is remanded to correct a pre-decisional error. In June 2022, the Veteran underwent a C&P examination wherein the examiner diagnosed other specified anxiety disorder. The examiner proffered a negative etiological opinion on a direct basis. In September 2022, a C&P examiner proffered a negative etiological opinion on a secondary basis. The examiner stated that the Veteran reported suffering from mild depression. The examiner stated that given the review of the Veteran's medical records, the Veteran has reported he began suffering from mild irritability and sleep disturbance in the beginning of 2022. The examiner stated that it is unclear from his medical records that there is a nexus between depression and bilateral pes planus. He was diagnosed in 1973 with bilateral pes planus and no signs of depression were noted. Therefore, the examiner opined that his depression is less likely than not due to or the result of the Veteran's service-connected condition of bilateral pes planus. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Initially, the Board notes that the September 2022 opinion does not adequately address whether the Veteran has a psychiatric disability due to his service-connected bilateral pes planus (0% 06/23/2015; 50% 04/26/2022). The examiner referenced the 1973 diagnosis of bilateral pes planus and stated that there no signs of depression at that time. For purposes of establishing service connection on a secondary basis, the inquiry is whether there is a nexus between the current psychiatric disability and his service-connected disability. Thus, such opinion is inadequate on a secondary basis. Moreover, it is noted that service connection is also in effect for benign neoplasms on lungs (10% 10/26/2021; 100% 12/12/2022); right second toe hammer toe status post arthroplasty associated with bilateral pes planus (0% 10/26/2021); and surgical scar, right second hammer toe status post arthroplasty (0% 10/26/2021). Opinions should be sought regarding these disabilities. Finally, the September 2022 opinion did not address aggravation. Such opinion does not address aggravation, and causation and aggravation are independent concepts requiring separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The matter is REMANDED for the following action: 1. Request that a clinician with appropriate expertise review the claims folder and respond to the following: a) Is an acquired psychiatric disability approximately at least as likely as not caused by (the psychiatric disability would have been less severe but-for a service-connected disability) service-connected bilateral pes planus, benign neoplasms on lungs; right second toe hammer toe status post arthroplasty; and surgical scar, right second hammer toe status post arthroplasty? b) Is an acquired psychiatric disability approximately at least as likely as not aggravated (i.e., worsened beyond the normal progression of the disease) by service-connected bilateral pes planus, benign neoplasms on lungs; right second toe hammer toe status post arthroplasty; and surgical scar, right second hammer toe status post arthroplasty? It is noted that any worsening need not be permanent; temporary worsening or flare-ups may also constitute aggravation. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the psychiatric disability prior to aggravation by bilateral pes planus, benign neoplasms on lungs; right second toe hammer toe status post arthroplasty; and surgical scar, right second hammer toe status post arthroplasty. Please note, causation and aggravation are separate concepts and must be addressed independently. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If the above issue cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kreindler, Marcy W. 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.