Citation Nr: 1314835 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-02 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for kidney disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active service from February 1974 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision drafted by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho and issued by the RO in Denver, Colorado. In March 2013, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In March 2013, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. FINDINGS OF FACT 1. Sleep apnea had its onset in service. 2. Hypertension had its onset in service. 3. Chronic kidney disease is most likely secondary to the Veteran's hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for hypertension are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for chronic kidney disease are met. 38 U.S.C.A. § 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for sleep apnea, hypertension, and chronic kidney disease, which represents a complete grant of the benefits sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. 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); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Board finds that the evidence supports an award of service connection for sleep apnea, hypertension, and chronic kidney disease. The evidence reflects that the Veteran has diagnoses of sleep apnea (confirmed by sleep study), hypertension, and chronic kidney disease during the pendency of the claim-in this case, on or after August 15, 2008. McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). Specifically, in January 2013, a physician from the United States Air Force Academy provided diagnoses of sleep apnea, hypertension, and chronic kidney disease. Another physician from the Air Force Academy diagnosed the Veteran with hypertension and chronic kidney disease in February 2009. Likewise, a private physician, Dr. S. Piedad, Jr., diagnosed the Veteran with hypertension and chronic kidney disease in February 2013 and March 2009. Finally, another private physician, Dr. J. Newcomer, diagnosed the Veteran with obstructive sleep apnea in February 2013. Thus, the evidence shows the Veteran meets the criteria of having current disabilities. The question remains whether these disabilities are related to service. The Board finds that the evidence shows in-service incurrence of sleep apnea and hypertension. With respect to hypertension, the Veteran's service treatment records include a February 1989 high blood pressure pre-treatment evaluation with a finding as high as 126/92, and a February 1994 clinician's finding of elevated blood pressure. With respect to sleep apnea, the Veteran testified at his March 2013 videoconference hearing that he snored, stopped breathing while sleeping, and always felt tired during his service. See transcript, p. 4. Consistent with the Veteran's statements, his service treatment records include his February 1993 statements to an in-service clinician that he felt tired and congested in his head and throat. Additionally, the Veteran's spouse of 42 years reported in a March 2013 statement that during his years as a lieutenant serving in Kansas he began snoring more than usual, escalating: from small and cute, into a snore that could not be ignored and [was] frankly downright irritating! Over the years it got progressively worse, to the point where most nights we slept in different rooms, with the doors closed because if you left them open you could still hear him snore....I knew something was seriously wrong for a man to snore that loud and hard, as well as [make] funny breathing sounds every single time he went to sleep, day or night. From the point he had his sleep study done and he was diagnosed and fitted with a mask, life changed for the both of us....[A]s he adjusted to the mask and beg[a]n to get a good night sleep, his energy level returned, he wasn't grouchy upon awakening, and he didn't have to take naps every day. Third, the Veteran's Air Force Academy physicians and private physicians have found a nexus between the Veteran's in-service symptoms and the present disorders of sleep apnea and hypertension. Additionally, they have found that his chronic kidney disease is secondary to his hypertension. Significantly, the Veteran testified at his March 2013 videoconference hearing that he brought his service treatment records to his post-service treating physicians, and they reviewed those records prior to issuing their opinions. See transcript, pp. 7-8. In February 2009, an Air Force Academy Physician opined that: [U]pon review of several encounters prior to [the Veteran's] retirement, it appears he had multiple encounters in which his blood pressure was elevated; however, action was not taken to explore whether blood pressures were elevated consistently; hence, he never had a previous diagnosis of hypertension. [The Veteran] did have a normal J-day BP [check] in 1989, but it appears to have been high on most visits after 1991. I suspect that his hypertension existed for a long duration (yrs) prior to his retirement [from service]. If so, this has likely led to a CKD2 [chronic kidney disease, stage 2] diagnosis. In March 2009, Dr. Piedad opined that: After review of [the Veteran's] medical records that he had provided, his CKD [chronic kidney disorder] is most likely secondary to hypertension. According to the available medical records, he had elevated blood pressures that [were] not treated nor followed-up. This, I believe existed prior to his retirement [from service]. In January 2013, a second Air Force Academy Physician also related the Veteran's hypertension, chronic kidney disease, and sleep apnea to service. In February 2013, Dr. Piedad issued a statement essentially identical to the one from March 2009. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board finds that the aforementioned opinions are competent because the physicians are qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Their etiological opinions are credible based on their internal consistency and the duty to provide truthful opinions. The Board further finds that the physicians' medical nexus opinions are based on informed examinations and readings of the Veteran's service treatment records; are unequivocally positive; and include reasoned analyses linking his sleep apnea and hypertension to his service, and linking his kidney disorder to his hypertension. Based on a review of the evidence, the Board finds that service connection is warranted for sleep apnea, hypertension, and kidney disease. In reaching this determination, the Board finds the Veteran's reports of sleep apnea symptoms during service are both competent and credible, particularly when combined with his documented February 1993 statements to an in-service clinician and his wife's March 2013 statement. Similarly, the Veteran's elevated blood pressure readings in service are documented in his treatment records. Moreover, when combined with the positive nexus opinions from Dr. Piedad and two Air Force Academy physicians who were familiar with the Veteran's service treatment records, the Board finds that the evidence is at least in equipoise as to whether the Veteran's sleep apnea and hypertension are related to service, and whether his kidney disease is secondary to his hypertension. Significantly, no medical opinion to the contrary is of record as to any of the three claims. While the Board recognizes that the Veteran did not complain of, and was not diagnosed with, sleep apnea, hypertension, or kidney disease at separation, the aforementioned records and medical opinions provide a sufficient basis for service connection even though the Veteran was asymptomatic on the day of his separation examination and report of medical history. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for sleep apnea, hypertension, and kidney disease. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. ORDER Service connection for sleep apnea is granted. Service connection for hypertension is granted. Service connection for chronic kidney disease is granted. ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs