Citation Nr: 1449192 Decision Date: 11/05/14 Archive Date: 11/10/14 DOCKET NO. 07-34 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1971, including service in the Republic of Vietnam. He also served with the Army National Guard from November 1972 to May 1994. These matters came to the Board of Veterans' Appeals (Board) from a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2011 and October 2013, the issues were remanded by the Board. The Board has previously referred the issue of entitlement to a total disability rating due to individual unemployability (TDIU) to the Agency of Original Jurisdiction (AOJ) for adjudication. This adjudication does not appear to have occurred and the issue is again referred to the AOJ. FINDINGS OF FACT 1. Hypertension is due to service-connected ischemic heart disease. 2. Sleep apnea is proximately due to service-connected ischemic heart disease. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 2. The criteria for an award of service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hypertension The Veteran contends that his hypertension is due to herbicide exposure during active service, or that his hypertension is caused or aggravated by his service-connected posttraumatic stress disorder (PTSD) and/or ischemic heart disease. In June 2014, a VA physician reviewed the claims folder. In regards to his hypertension being worsened or caused by ischemic heart disease the examiner explained that the current state of medical literature clearly showed that patients with ischemic heart disease were much more likely to have hypertension. It was unclear if his ischemic disease worsened his hypertension but the same processes that caused ischemic heart disease worsened or could lead to hypertension. The examiner noted that it was clear in literature that hypertension and ischemic heart disease occurred together frequently and there was no clear way to define which process occurred first. Given the clear connection, the examiner would favor a conclusion that the Veteran's hypertension is at least as likely as not proximately due to his service-connected ischemic heart disease. Based on a finding that the other negative opinions of record lack probative value and in light of the June 2014 VA examiner's positive etiological opinion, the Board finds that the evidence supports a finding that hypertension is due to service-connected ischemic heart disease. Sleep apnea VA has obtained several medical opinions regarding the relationship between the Veteran's diagnosed sleep apnea and herbicide exposure or service connected PTSD or ischemic heart disease. An August 2005 nocturnal polysomnogram report from Kershaw indicates that the Veteran has been diagnosed as having severe sleep disordered breathing. In July 2011, the Veteran underwent a VA examination pertaining to his sleep apnea. The examiner found that obstructive sleep apnea was diagnosed in 2005. The examiner opined that sleep apnea is less likely than not related to herbicide exposure or a disease or injury in service. The examiner stated that his sleep apnea is not associated with his ischemic heart disease as he did not have problems with sleep apnea until a year following his coronary artery disease diagnosis and his cardiovascular disease is stable. The Board affords no probative weight to this opinion as the examiner did not provide appropriate rationale for the negative etiological opinion. In November 2013, the Veteran underwent another VA examination. With regard to sleep apnea, the examiner stated that sleep apnea was diagnosed in 2008. The examiner opined that it is less likely as not that the Veteran's current condition of sleep apnea was caused by or related to herbicide exposure, ischemic heart disease or PTSD. The examiner stated that there are no known reported direct connections of sleep apnea with these 3 conditions on any medical publications. The examiner explained that sleep apnea is a condition characterized by oxygen desaturation because of dysfunction in the oropharyngeal and upper airway mechanisms during sleep, causing pauses in breathing and very loud snoring. This opinion is supported by medical textbooks and the literature. Such opinion is entitled to no probative weight as the examiner failed to consider the internet medical articles submitted by the Veteran pertaining to certain types of sleep apnea being more common in people with cardiac problems. The examiner also failed to provide an appropriate rationale for the negative etiological opinion. Finally, the examiner noted a date of onset of 2008 for sleep apnea; however, records reflect that sleep apnea was diagnosed in 2005. In August 2014, a VA physician reviewed the claims folder to proffer an opinion. The examiner explained that since obesity was the number one cause of sleep apnea, that factor must be weighed accordingly as a possible contributing etiology of the Veteran's sleep apnea developing some 40-50 years after his service in Vietnam. Since the Veteran was known to have coronary artery disease, the likelihood of an atherosclerotic process of his arterial vascular supply is evidence, and this was caused by persistent elevated levels of lipids and fatty acids that coat the vessel linings which in turn cause a reduced lumen for blood to reach its target organs; thereby resulting in ischemia and/or infarction of the target tissues. More often than not, accompanying such atherosclerotic changes in the arterial vasculature is a significant weight gain over time from unregulated dietary habits. This weight gain in turn could cause an increase in vascularity as well as the reduced diameter of the arterial blood vessels throughout the body to enhance the development of hypertension. The examiner stated that no medical records of the Veteran's height and weight fluctuations were made available but it would be his educated conclusion that he is overweight and very likely bordering if not actually having a BMI in excess of 30kg/m2 that would classify his body habitus as obese. The examiner stated that the likelihood of the Veteran's sleep apnea being secondary to his age, atherosclerosis, weight gain and possible obese stature was a much greater probability than the extremely unlikely hypothetical, unsubstantiated theory that it might remotely be caused by some form of presumptive exposure to herbicides 40 to 50 years previously. The physician's opinion serves to link the claimed sleep apnea to the service connected ischemic heart disease, inasmuch as the latter disease encompasses atherosclerosis. 38 C.F.R. § 3.309(e). Accordingly, service connection is granted for sleep apnea as being proximately due to the service connected ischemic heart disease. 38 C.F.R. § 3.310(a). ORDER Entitlement to service connection for hypertension is granted. Entitlement to sleep apnea is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs