Citation Nr: 1338835 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-16 615A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to service- connected type 2 diabetes mellitus. 2. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to service-connected type 2 diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counel INTRODUCTION The Veteran performed active military service from November 1966 to June 1969 and from January 1970 to February 1979. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that, in pertinent part, granted service connection for type II diabetes mellitus, but denied service connection for hypertension and for sleep apnea, claimed as due to or aggravated by diabetes mellitus. Other service connection claims were also denied in the May 2007 rating decision, but were not appealed. The Veteran appeared at a travel Board hearing in October 2012 before the undersigned. A transcript of the hearing testimony is associated with the claims file and has been reviewed. The Board remanded the case in January 2013 to the Appeals Management Center (AMC) in Washington, DC, for additional development. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. FINDINGS OF FACT 1. The Veteran's hypertension did not originate in service or until years after service, and is not otherwise etiologically related to service; nor was hypertension caused or chronically worsened by service-connected disability. 2. The Veteran's obstructive sleep apnea did not originate in service, and is not otherwise etiologically related to service; nor was obstructive sleep apnea caused or chronically worsened by service-connected disability. CONCLUSIONS OF LAW 1. Hypertension was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a) (2013). 2. The Veteran's hypertension is not proximately due to, the result of, or aggravated by service-connected disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.159, 3.310. 3. OSA was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303. 4. The Veteran's OSA is not proximately due to, the result of, or aggravated by service-connected disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in December 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned in the event service connection is granted. The letter was time- and content-compliant. See 38 C.F.R. § 3.159(b)(1); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In light of the above, VA complied fully with the VCAA notice requirements. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The undersigned also remanded the case to obtain an additional medical review of the claims file. Neither the Veteran nor his representative asserts that there is additional evidence to be obtained. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. Applicable Law and Regulation Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) 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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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, if a chronic disease as defined in 38 U.S.C.A. § 1101 or 38 C.F.R. § 3.309(a), is diagnosed in active service or an applicable presumptive period. White v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic 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 v. Gober, 10 Vet. App. 488, 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Layno v. Brown, 6 Vet. App. 465, 469 (1994). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. 488, 496 (2997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hypertension, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption, however, is rebuttable. 38 C.F.R. § 3.307(d). A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis For VA purposes, hypertension means that diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160mm or greater, with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The service treatment records contain no notation of complaints of or treatment for elevated blood pressure readings or sleep difficulty. Reports of Medical History of January 1970, January 1973, and February 1979 reflect the Veteran denied any prior history of high blood pressure or sleep difficulty. The January 1970 Report of Medical Examination reflects a blood pressure reading of 110/74 and a normal chest X-ray. A January 1973 Report of Medical Examination notes a blood pressure reading of 118/74; and, the February 1979 Report of Medical Examination For Separation reflects a blood pressure reading of 112/78. The above noted examination reports also reflect the Veteran's cardiovascular, lungs and respiratory systems were assessed as normal. Private treatment records dated in June 1999 note the Veteran's blood pressure was elevated, and he possibly was manifesting OSA. Private records dated in November 2000 note the Veteran was started on hypertension medication. The Veteran was also diagnosed with OSA in the 2000s. The noted private records do not note any reported history by the Veteran or in-service symptoms or a medical opinion that either the Veteran's hypertension or OSA was causally related to his active service. In short, there is no evidence of hypertension or OSA in service or until years thereafter, and no competent or credible evidence linking either disorder to service. Consequently, there is no factual basis for allowance of entitlement to service connection for hypertension or OSA on either a presumptive or direct basis. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). As to secondary service connection, VA outpatient records of September 2006 note the Veteran was a newly diagnosed diabetic. As noted earlier in the Introduction, a May 2007 rating decision granted entitlement to service connection for type 2 diabetes mellitus due to herbicides exposure. Hence, Wallin elements 1 and 2 are shown by the evidence of record. The Board now considers whether Wallin element 3 is present-a causal or aggravation nexus between the Veteran's hypertension/OSA and his diabetes mellitus. A February 2008 VA examination report notes the examiner opined there was not at least a 50-percent probability that the Veteran's hypertension was causally related to his diabetes, as his diagnosis of hypertension predated the diagnosis of diabetes. An April 2012 VA examination report reflects that, after a review of the claims file and an examination of the Veteran, the examiner opined it was unlikely the Veteran's hypertension was due to the Veteran's diabetes, as it preexisted the onset of the diabetes. The examiner opined further that it also was unlikely the diabetes aggravated the hypertension beyond its normal progression, as the Veteran's records reflected the Veteran's blood pressure was under good control. As concerns the Veteran's OSA, the examiner opined it was not due to the Veteran's diabetes. In addition to noting the Veteran's OSA preexisted the onset of diabetes, the examiner also noted the applicable medical literature noted the definite risk factors for OSA included obesity; craniofacial abnormalities; and, upper airway soft tissue abnormalities. Of those risk factors, the examiner noted, obesity is the best documented risk factor for OSA. The examiner then noted the Veteran, with a BMI greater than 33, is obese. Hence, the examiner opined the Veteran's obesity is the most likely etiology for his OSA, and it was unlikely due to his diabetes. In his written submissions and his hearing testimony, the Veteran asserted the dates of diagnoses of his disabilities should not be determinative of his appeal, as his diabetes may well have been present well before his diagnosis. He noted the notation of high triglycerides in his medical records as an example. In light of the state of the evidence, to include the hearing testimony and the fact the Veteran has been service connected with additional disabilities, the undersigned remanded for additional medical input on the issue of whether the Veteran's hypertension or OSA is aggravated by any of his service-connected disabilities. In an August 2013 addendum to the April 2012 examination report, the examiner noted the prior examination reports and the claims file were reviewed. As concerns the Veteran's hypertension, the examiner noted the Veteran's medical records indicated the Veteran's blood pressure was elevated despite taking a diuretic for his venous insufficiency in the lower extremities in the 1990s. Also noted was that the Veteran's hypertension medication was adjusted over time, and the records of the Veteran's PCP noted compliance issues. The examiner noted mild renal function issue as the only currently noted problem in the latest laboratory report. The examiner noted the Veteran's positive family history for hypertension, his past remote tobacco-use history, and the Veteran's obesity. The examiner noted his review of the applicable medical literature on the causes of hypertension did not list conditions consistent with the Veteran's service-connected disabilities. Hence, based on the Veteran's records, examinations, and imaging, it was not at least as likely as not that the Veteran's hypertension was caused or chronically worsened by his service-connected disabilities. In the August 2013 addendum, the examiner indicated that his review of the medical literature concerning the factors associated with sleep apnea did not include the types of disorders for which service connection is in effect. The examiner's opinion was that the OSA was not caused or chronically worsened by service-connected disability. The medical evidence of record thus is consistently against the claim of secondary service connection for hypertension and OSA. The Board notes that the only evidence in favor of the claims consists of the statements of the Veteran and his wife. The Board notes that his wife testified to the effect she had gained significant experience recognizing the symptoms of diabetes during her care of her mother. She also testified to her observations of the Veteran's sleep patterns. The Board notes that both the Veteran and his wife are competent to provide evidence of symptoms they personally observed. See 38 C.F.R. § 3.159(a)(2). On the other hand, the Board finds that opining on the etiology of hypertension and OSA, to include whether either is chronically worsened by another disability, is clearly beyond the training and experience of a layperson, particularly where, as in this case, the first evidence of either disorder is years after service. 38 C.F.R. § 3.159(a)(1); see also Jandreau, 492 F. 3d 1372. There is no evidence that either the Veteran or his wife has medical training. Hence, to any extent either may personally opine the Veteran's hypertension or OSA is due to service or caused or chronically worsened by either of his service-connected disabilities, their opinion on the issue is not probative. Id. The evidence of record, as set forth and discussed above, shows the absence of Wallin element 3. Hence, the Board is constrained to deny the claim on all bases: presumptive, direct, and secondary. 38 C.F.R. § 3.303, 3.307(a), 3.309(a), 3.310. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). (CONTINUED ON THE NEXT PAGE) ORDER Entitlement to service connection for hypertension, to include as due to service-connected disabilities, is denied. Entitlement to service connection for OSA, to include as due to service-connected disabilities, is denied. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs