Citation Nr: 1322121 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-00 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents. 3. Entitlement to service connection for pulmonary hypertension, to include as due to exposure to herbicide agents. 4. Entitlement to service connection for erectile dysfunction, to include as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issues on appeal have been recharacterized to comport with the current diagnoses shown in this case. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled); McClain v. Nicholson, 21 Vet. App. 319 (2007). FINDING OF FACT The probative evidence does not show obstructive sleep apnea, hypertension, pulmonary hypertension, or erectile dysfunction related to the Veteran's military service. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for pulmonary hypertension have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The RO's December 2004, September 2005, June 2006, and January 2013 letters advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The June 2006 and January 2013 letters provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the RO satisfied the notice requirements with respect to the issues on appeal. The duty to assist the Veteran has also been satisfied. The RO has obtained the Veteran's available service treatment records and all identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In March 2013, VA medical examinations were conducted and medical opinions obtained. These VA examinations were performed by an examiner who reviewed with the Veteran his history of obstructive sleep apnea, hypertension, pulmonary hypertension, and erectile dysfunction; examined the Veteran; and included a rationale for all conclusions reached. These examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has not claimed that this examination was inadequate. There is no sign in the record that additional evidence relevant to the issues being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board remanded this matter in April 2011 and November 2012 directing the RO to provide an updated notification letter to the Veteran, obtain additional information relating to the Veteran's participation in an inservice medical research study, and obtain a medical opinion as to whether any of the conditions on appeal are relating to the Veteran's military service, including his inservice exposure to herbicides and GD, the nerve agent Soman. The RO subsequently sent an updated notification letter to the Veteran in January 2013, obtained information from the Department of Defense in March 2011 concerning the Veteran's participation in an inservice medical study, and scheduled the Veteran for VA examinations conducted in March 2013. Accordingly, the directives of the Board's April 2011 and November 2012 remands have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). There is no sign in the record that additional evidence relevant to the issues being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131. Moreover, in the case of hypertension, service connection may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran served on active duty in the Army from February 1962 to February 1964. His service treatment records are completely silent as to any complaints of or treatment for a sleep disability, hypertension, pulmonary hypertension, or sexual dysfunction. His separation examination, performed in February 1964, noted that his heart, vascular system and genitourinary system were normal. The report listed his blood pressure as 110/74. On a medical history report, completed pursuant to his separation examination, the Veteran denied having any history of frequent trouble sleeping or high blood pressure. Post service treatment records reflect that "new onset" hypertension was diagnosed in January 1990. Subsequent treatment records in 1990, reflect complaints and diagnoses of impotence. These treatment records also reference a possible link between the Veteran's impotence and his newly prescribed anti-hypertensive medications. A September 1991 VA treatment report noted the Veteran's complaints of "broken sleep." Subsequent treatment records revealed additional complaints relating to sleeping problems. A November 1994 treatment report noted a diagnosis of obstructive sleep apnea. A June 2004 treatment report noted a diagnosis of mild pulmonary hypertension. A May 2011 letter from the Department of the Army noted that the Veteran participated as a medical research volunteer during his military service at what was then the Edgewood Arsenal in Maryland. The letter noted that records associated with this research revealed that the Veteran was exposed on December 5, 1963 to GD, the nerve agent Soman, percutaneously, in a dose of 30 micrograms/kilogram. In March 2013, the Veteran underwent a series of four VA examinations, all of which were performed by the same examiner. Following a physical examination, the report listed diagnoses of sleep apnea, hypertension, mild pulmonary hypertension, and erectile dysfunction. The examiner then opined that it was "less likely than not" that the Veteran's obstructive sleep apnea, hypertension, mild pulmonary hypertension, and erectile dysfunction were related to his military service. In support of this opinion, the examiner stated that the Veteran did not have any of these disabilities during his military service, that these disabilities are not related to exposure to Agent Orange, and that exposure to Soman does not cause long term effects. The examiner further noted acute symptoms of Soman exposure usually resolve, or the person dies. Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for obstructive sleep apnea, hypertension, pulmonary hypertension, or erectile dysfunction. The Veteran's service treatment records are completely silent as to any complaints of or treatment for any of the appealed disorders. The earliest post service diagnosis of any disability on appeal is dated in January1990, over 27 years after the Veteran's discharge from the service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); Shaw v. Principi, 3 Vet. App. 365 (1992) (finding the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). As hypertension was not shown to have developed until more than two decades after the Veteran's discharge from the service, presumptive service connection is not warranted. 38 U.S.C.A. §§ 1101(3), 1112(a), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Although the Veteran contends he was exposed to Agent Orange during service, no such exposure has been shown by the evidence of record. The Veteran's report of separation, Form DD 214, noted that he had no foreign or sea service. While the Veteran is shown to have participated in a medical study during his military service, no inservice exposure to Agent Orange is shown in the records relating to this study. Thus, service connection based upon inservice exposure to herbicides is not warranted. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Finally, the VA examiner in March 2013 opined that it "was less likely than not" that the Veteran's current obstructive sleep apnea, hypertension, pulmonary hypertension, or erectile dysfunction are related to his military service. In reaching this conclusion, the VA examiner noted that none of these disabilities were shown during the Veteran's military service, and that none are related to exposure to Agent Orange or the Veteran's inservice exposure to Soman. Consequently, there is no competent probative evidence linking the Veteran's current sleep apnea, hypertension, pulmonary hypertension or erectile dysfunction to his military service. Absent such a nexus, service connection cannot be established. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Veteran contends that the appealed disorders are related to his military service. While the Veteran's statements are competent evidence of symptoms he experiences, he has not claimed that symptoms of these disorders began in service and continued in the years after his separation from military service. Moreover, the VA examiner considered the Veteran's statements when providing an opinion as to whether obstructive sleep apnea, hypertension, pulmonary hypertension, or sexual dysfunction were related to his military service, or to any incident therein. The Board finds that the VA examiner's opinion is more probative on the issue of etiology than the Veteran's statements. Under these circumstances, the Board must conclude that service connection is not warranted for obstructive sleep apnea, hypertension, pulmonary hypertension, or sexual dysfunction. In reaching this decision, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for obstructive sleep apnea is denied. Service connection for hypertension is denied. Service connection for pulmonary hypertension is denied. Service connection for erectile dysfunction is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs