Citation Nr: 18154147
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 17-01 355
DATE:	November 29, 2018
ORDER
Entitlement to service connection for sleep apnea is denied.
REMANDED
Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded.
Entitlement to service connection for a left knee disability is remanded.
Entitlement to service connection for a right knee disability is remanded
FINDINGS OF FACT
The weight of the evidence is against finding that the Veteran has a diagnosis of sleep apnea that is the result of his service, nor did it manifest to a compensable degree within one year of service.
CONCLUSIONS OF LAW
The criteria for service connection for sleep apnea have not been met.  38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1976 to November 1996. He served in Southwest Asia from August 1990 to April 1991.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. 
Service Connection
Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. 
Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability.  See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303.
Service connection may also be granted for any disease 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).
Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and chronic diseases become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303 (b).  Insofar as the appellant presents an argument of continuity of symptomatology, the U.S. Court of Appeals for the Federal Circuit recently held in Walker v. Shinseki that service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309 (a).  Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013).  OSA is not listed as a chronic disease under 38 C.F.R. § 3.309 (a). 
The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 
Service connection may be also warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021.  38 C.F.R. § 3.317 (a)(1).  Records show that the Veteran served in the Persian Gulf during service.  Therefore, the Veteran is considered a Persian Gulf War Veteran.
For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection.  Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  38 C.F.R. § 3.317 (a)(4).
It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.
Entitlement to service connection for sleep apnea. 
The Veteran contends that he has sleep apnea that is related to service.  The Board concedes that the Veteran has been diagnosed with obstructive sleep apnea.   
The Veteran’s STRs are negative for any indications of OSA during service.  Post-service medical records show that the Veteran was first diagnosed with OSA in 2005.  There is no indication in the Veteran’s STRs that he was diagnosed with sleep apnea or experienced any symptoms associated with sleep apnea. 
The Veteran did not report difficulty with sleeping while in service, but he has stated in lay testimony that his complications from sleep apnea have plagued him since leaving the military.  
The Veteran was afforded a VA examination in June 2015.  Following a review of the evidence of record and examination, the examiner confirmed the 2005 sleep apnea diagnosis.   The examiner noted the Veteran was diagnosed with obstructive sleep apnea (OSA) many years after retirement from the Army and there are no service treatment records that state the Veteran had any symptoms of OSA while on active duty.  Based on the date of diagnosis of OSA, BMI of 35 and no documentation of symptoms of OSA while on active duty, the VA examiner opined that it is less likely than not that the Veteran’s sleep apnea incurred in or was caused by your active duty service.  
While the Veteran contends that his OSA is a result of service, this is based solely on his lay observation and beliefs.  While the Veteran is competent to report an observable symptom such as snoring, he is not competent to diagnose a condition such as OSA, as this involves a more complex medical question, with objective testing, such as a sleep study.  See Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  Thus, the reports from the Veteran do not provide competent evidence of an in-service disability of OSA as the etiology of this disorder is not capable of lay observation.  Accordingly, the Veteran’s statements have little probative value.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999). 
The most probative evidence of record comes from the findings of the June 2015 VA examiner.  The medical opinion weighs against the claim, finding against a relationship between service and the Veteran’s OSA.  The Veteran is competent to report having trouble sleeping.  However, notwithstanding the Veteran’s contentions, the evidence of record does not show a relationship between the Veteran’s OSA and service.  The Veteran’s STRs do not mention trouble sleeping and the Veteran did not seek treatment until many years after service separation.  Additionally, the Board notes no medical professional has provided any opinion indicating that the Veteran has sleep apnea as a result of or due to service.  
As noted above, the Veteran is a Persian Gulf veteran within the meaning of the applicable statute and regulation.  38 C.F.R. § 3. 317 (e).  However, the Board finds that the Veteran’s OSA is not a qualifying chronic disability that is an undiagnosed illness or a medically unexplained chronic multi-symptom illness.  Rather, the Veteran’s sleep related symptoms have been attributed to a known clinical diagnosis.  As indicated in the Veteran’s June 2004 sleep study and VA examination in June 2015, his sleep related symptoms are diagnosed as OSA.  Thus, awarding service connection pursuant to 38 U.S.C. § 1117 is not warranted.  38 C.F.R. § 3.317 (a)(ii) (a qualifying chronic disability is one that cannot be attributed to a known clinical diagnosis).  Accordingly, the Board concludes that service connection for OSA as due to an undiagnosed illness is not warranted. 38 C.F.R. § 3.317.
Therefore, based on the foregoing, the Board finds that service connection for OSA is not warranted.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection OSA.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.
REASONS FOR REMAND
1. Entitlement to PTSD is remanded.
Although the Board regrets the delay, it finds that a remand is needed prior to adjudication of the Veteran’s remaining claims.
The Veteran seeks service connection for PTSD.  The evidence of record shows that the Veteran was diagnosed with PTSD by a private physician, Dr. E.W.H. in November 2014.  The examiner concluded that Veteran’s diagnosis was related to his military service.  Additionally, the letter stated that the Veteran had been receiving treatment for his PTSD since October 2014.  This treatment included monthly PTSD counseling and medication.  
In June 2015, the Veteran was afforded a VA examination.  The examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-V criteria.  The examiner stated that although the Veteran was exposed to traumatic situations in service during the examination, per the Veteran’s report and the scores on the PCL 5, the symptoms did not meet the criteria for a PTSD diagnosis.  The examiner also noted the Veteran was receiving mental health treatment for PTSD, but found the presented symptoms on examination did not support a PTSD diagnosis. 
While the Board acknowledges that the Veteran has submitted a diagnosis of PTSD from a private physician, the physician did not provide an adequate explanation as to how he came to this finding.  The examiner did not mention what, if any, review of the Veteran’s service records or prior medical records was performed.  
Although the VA examination acknowledged the Veteran’s PTSD diagnosis by Dr. E.W.H., the VA medical opinion did not adequately address the favorable medical evidence showing that the Veteran was diagnosed with PTSD by a private counselor.  Nor did the VA medical opinion discuss whether the private opinion’s analysis using the DSM-V criteria met the standards of 38 C.F.R. § 4.125.  The examiner also failed to address the diagnosis of dysthymic disorder and did not note whether the Veteran’s prior symptoms met the DSM-V criteria for any acquired psychiatric disorders.  Therefore, the VA medical opinion is inadequate.
It is well established that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Thus, the Board finds that a remand is required for the Veteran’s claim for service connection for PTSD. 
Moreover, case law requires that VA consider whether a disability may be service-connected if the disability existed at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved.  McLain v. Nicholson, 21 Vet. App. 319 (2007).
Therefore, as the Board finds that the VA opinions of record regarding this issue are inadequate as they failed to address the diagnoses and treatment for PTSD as well as dysthymic disorder, a new VA examination is necessary. 
2. Entitlement to service connection for a bilateral knee condition. 
The Veteran contends that his bilateral knee condition is related to service, to include as a result of in-service parachute jumps.  
In connection with his claim the Veteran provided medical evidence from Dr. H. K.  He opined the Veteran’s degenerative joint disease of the knees was caused by years of parachute jumps.  The Board notes that the records fail to provide a rationale for the opinion, nor did he indicate what records were reviewed.
The Veteran was afforded a VA examination in June 2015.  The examiner opined the Veteran’s claimed bilateral knee condition was less likely than not (less than 50 percent probability) incurred in or caused by service or an in-service event or illness.  
However, the examiner did not reference the private opinion by Dr. H.K. that indicated the Veteran has DJD or the knees that as caused by years of parachute jumps while in service.  
Once the VA endeavors to provide a VA examination, the examination must be adequate for the purposes of adjudicating the claim.  The June 2015 VA examination concerning the bilateral knee disability is inadequate in that the examiner did not mention or discuss the private medical opinion in the claims file.  Therefore, a clarifying opinion is required.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
The matters are REMANDED for the following action:
1. Perform any and all development considered necessary to adjudicate the Veteran’s claims for PTSD and a bilateral knee disability.  In particular, the Veteran should be asked to identify any further treatment received by Dr. E.W.H. and Dr. H.K.  The AOJ should ask the Veteran to submit authorization and release forms for VA to obtain private treatment records.
If he provides the identifying information and releases sought, the AOJ should secure for the record copies of the complete clinical records of the identified treatment not already associated with the record.  If the records are available, but not received pursuant to the AOJ’s request, the Veteran must be so advised and reminded that ultimately it is his responsibility to ensure that private records sought are received.  If a submission by the provider or the Veteran is incomplete, the Veteran must be so advised, and afforded the opportunity to complete the submission.  All attempts to obtain these records should be documented in the claims file.
2. Obtain any relevant VA treatment records that are not already of record.
3. Following completion of the above, schedule the Veteran for a VA PTSD/mental disorders examination.  The examiner is asked to address the nature and etiology of PTSD, and anxiety as reflected in the Veteran’s VA treatment records.  If the examiner determines that no acquired psychiatric disorder is present, he or she must discuss treatment records which diagnose PTSD and dysthymic disorder.
Based on a review of the claims file and the results of the Veteran’s examination, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed acquired psychiatric disability, to specifically include PTSD, and dysthymic disorder, is of service onset or otherwise related to active service or any incident of such service.  The examiner must address all previous psychiatric diagnoses in the record.
4. After the above has been completed obtain an addendum to the June 2015 VA examination for knee.  Only if it is determined a new examination should be conducted, schedule the Veteran for VA examination with the appropriate examiner to determine the nature, extent, and etiology of his claimed bilateral knee disability.
The examiner is asked to provide an opinion as to whether it as likely as not (50 percent or greater probability) that the Veteran’s bilateral knee pathology is related to his active service or had its onset during active service?  The examiner is asked to specifically address the private medical opinion from Dr. H.K.  
5. All opinions expressed by the examiners should be accompanied by a complete, clear rationale, with citation to relevant medical findings and lay statements.  A discussion of the facts and medical principles involved would be of considerable assistance to the Board.  The claims file and must be made available to the examiner, and the examiner must specify in the report that the claims file has been reviewed.  Any indicated diagnostic tests and studies should be accomplished.  The Veteran’s complaints and lay history should be recorded in full and addressed.
6. If the examiners cannot provide the requested opinions without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiners shall explain whether the inability to provide more definitive opinions is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).  

 
 L.M. BARNARD
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Whitley, Associate Counsel 

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