Citation Nr: 1535651	
Decision Date: 08/20/15    Archive Date: 08/31/15

DOCKET NO.  12-24 139A	)	DATE
	)
	)

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to service connection for benign prostatic hypertrophy. 

3.  Entitlement to service connection for hypertension.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel



INTRODUCTION

The Veteran served on active duty from August 1969 to August 1970.

These matters come before the Board of Veterans' Appeals (Board) from a June 2010 RO decision.  Although the Veteran had requested to present sworn testimony during a hearing before a Veterans Law Judge, he withdrew this request prior to the scheduled hearing.  The Board will therefore proceed to review the appeal based upon the evidence currently of record.

In June 2015, the Veteran filed new claims for entitlement to service connection for post-traumatic stress disorder and peripheral neuropathy affecting his upper extremities.  It appears from review of the Veteran's electronic file that the RO is actively working on these new claims; therefore no referral of the new claims to the RO is necessary.  

The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Sleep apnea was not initially manifested during service or for many years thereafter, and is not otherwise shown to be related to service in any way.

2.  Benign prostatic hypertrophy was not initially manifested during service or for many years thereafter, may not be presumed under law to have been incurred during service, and is not otherwise shown to be related to service in any way.





CONCLUSIONS OF LAW

1.  Service connection for sleep apnea is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).

2.  Service connection for benign prostatic hypertrophy is not warranted.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran is seeking service connection for sleep apnea, hypertension, and benign prostatic hypertrophy.

Duties to notify and assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).  The duty to notify the Veteran was satisfied prior to the initial RO decision in a February 2010 letter.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  This letter also provided notice of information and evidence needed to establish disability ratings and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VA also has a duty to assist a Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development as to the issues decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains relevant service treatment and personnel records, private medical treatment records, VA medical records, and the Veteran's own contentions.  

VA has not provided a medical examination with regard to the issues decided herein.  However, VA is not required to provide an examination in every case.  Rather, the Secretary must provide a medical examination when the information and evidence of record establishes that a claimant suffered an event, injury, or disease in service.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet.App. 79, 82 (2006).  As discussed further below, the Board has determined that the Veteran did not experience any in-service event, injury, or disease in service that may be associated with his sleep apnea or benign prostatic hypertrophy.  Bardwell v. Shinseki, 24 Vet. App. at 39 (2010) ("The determination as to whether there was an event, injury, or disease in service is a finding of fact for the Board").  Thus, the criteria for obtaining a VA examination or medical opinion with respect to these disabilities have not been met.  38 U.S.C. § 5103A; McLendon.  VA has no obligation to obtain further medical examinations or opinions in connection with these two claims.  38 U.S.C.A. § 5103(A)(d) ; see also Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003).

Standard of review

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation.  See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in his electronic VA files.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

Analysis

Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease.  38 U.S.C.A. §§ 1110, 1131.  Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service.  Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303.

To establish a right to compensation for a present disability on a direct basis, a Veteran must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310.

Regulations pertaining to all herbicides used in Vietnam, provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides.  38 C.F.R. § 3.307.  These regulations also stipulate the diseases, including prostate cancer and diabetes, for which service connection may be presumed due to an association with exposure to herbicide agents.  38 C.F.R. §§ 3.307(a)(6), 3.309(e).  Service connection for diabetes has already been granted on this basis.  The presumptive diseases do not, however, include sleep apnea or benign prostatic hypertrophy.  The Veteran may still support a claim for service connection with proof of actual direct causation, however.  Combee v. Brown, 34 F.3d 1039 (1994).

Nowhere in his assertions does the Veteran explain why he believes sleep apnea and benign prostatic hypertrophy are related to his service.  He simply requests service connection and expresses his belief that the RO was wrong in not granting service connection for these disabilities.

The Veteran's service treatment records are entirely negative for any of these disabilities.  There is no information as to the Veteran's status within a year of his discharge from service.  The earliest post-service medical records available for review are dated in 1999; however none of the claimed disabilities are shown until 2006, when he was initially diagnosed with sleep apnea.  The Veteran himself reported in his original VA application for compensation that he began experiencing these disabilities in 2009.  

That the Veteran currently has these two disabilities is not in dispute, as current treatment records confirm both.  None of these treatment records contain any information linking them to service, however.  

In short, service connection on a direct basis is not warranted as no injury or pre-cursor to either of the disabilities at issue is shown during service.  No other direct connection to service is shown or postulated either.  Indeed, neither of the disabilities is documented until more than twenty-five years after the Veteran's period of service.  This lengthy period without treatment, post-service, weighs heavily against the claims.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  

Secondary service connection is not warranted, absent any evidence that the Veteran's service-connected diabetes proximately-caused either of these disabilities.  

Presumptive service connection based upon herbicide exposure is unwarranted, as neither of the disabilities at issue is presumed under law to be related to herbicide exposure although the Veteran is presumed to have been exposed to herbicides.  38 C.F.R. § 3.307(a)(6).  Thankfully, the Veteran only has benign prostatic hypertrophy and does not have prostate cancer, which is one of the presumptive diseases.  Lastly, no other connection between the claimed disabilities and herbicide exposure in Vietnam has been established.  Combee. 

There is thus no basis under law for the grant of service connection for sleep apnea or benign prostatic hypertrophy.  The preponderance of the evidence is against the claims and the benefits sought must be denied.

ORDER

Service connection for sleep apnea is denied.

Service connection for benign prostatic hypertrophy is denied.
	
	(CONTINUED ON NEXT PAGE)

REMAND

The Veteran's service treatment records are entirely negative for hypertension.  The initial diagnosis of hypertension occurred many years after his discharge from service.  In the report of a July 2012 VA examination, a VA examiner rendered the opinion that hypertension was not proximately caused or aggravated by the Veteran's service-connected diabetes.  Although this opinion is helpful, no explanation or rationale was provided by the examiner. 

While hypertension is not recognized in 38 C.F.R. § 3.309 as a presumptive condition due to herbicide exposure, the National Academy of Sciences has indicated that there is limited or suggestive evidence of an association between hypertension and herbicide exposure.  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report:  Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 -01 (Apr. 11, 2014).  Therefore, the Board finds that an informed VA medical opinion is required to address whether the Veteran's hypertension is related to service, to include his presumed in-service herbicide exposure.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded a VA examination by an examiner with appropriate expertise to evaluate his hypertension for purposes of determining whether it is more, less, or equally likely that:
* it is related to service, to include as due to in-service herbicide exposure, or
* it is proximately caused by or secondary to the Veteran's service-connected diabetes.  

The claims folder must be made available to the examiner for review before the examination.  All tests and studies deemed helpful by the examiner should be accomplished in conjunction with the examination.  A complete rationale for both opinions requested must be fully explained.  

2.  After the development requested above has been completed, the RO should again review the record.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs