Citation Nr: 1701034 Decision Date: 01/12/17 Archive Date: 01/27/17 DOCKET NO. 07-26 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a heart disorder, to include hypertension and pericarditis. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1996 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the request to reopen a claim for service connection for a heart condition, also claimed as chest pain, and denied entitlement to service connection for sleep apnea. In a March 2011 decision, the Board reopened the claim for service connection for a heart disorder. The Board determined that further development was necessary regarding the reopened claim and the sleep apnea claim. The Acting Veterans Law Judge (VLJ) who conducted a July 2010 hearing prior to the March 2011 remand retired prior to recertification to the Board. Upon recertification, the Board notified the Veteran of his right to a hearing before another VLJ regarding his claims. In July 2012, the Veteran elected to exercise his right to appear at a hearing before another VLJ, and the Board remanded the appeal to the AOJ in August 2012 to schedule a hearing at the RO. In September 2014, the Veteran testified at a hearing at the RO before the undersigned. A transcript is of record. In a July 2015 decision, the Board determined that additional development was necessary regarding the heart disorder and sleep apnea claims. The RO only adjudicated the Veteran's claim seeking service connection for a heart disorder, claimed as chest pain. The Board construes the claim as encompassing service connection for hypertension and pericarditis. See Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). The issue of entitlement to service connection for sleep apnea is REMANDED again to the Agency of Original Jurisdiction (AOJ); and is addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. There is competent evidence of hypertension within one year of the Veteran's separation from active service. 2. Although the Veteran has complained of a heart disorder, pertinent medical evidence indicates that the Veteran does not have a disability of the heart other than his hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for a heart disorder, other than hypertension, are not met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In the present case, in an April 2005 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what evidence is needed to substantiate his claim for service connection, as well as what evidence must be submitted by the Veteran and what evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. Thus, VA's duty to notify has been met. The record also reflects that VA has made efforts to assist the Veteran in the development of his claim. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records, VA examination reports, and the statements of the Veteran. The Veteran was afforded a VA examination in January 2016. The Board finds these examination reports to be adequate, as the examiner reviewed the Veteran's claims file, interviewed the Veteran, considered the Veteran's relevant medical/military/occupational history, conducted a physical examination and testing, and provided a reasoned rationale for the opinion rendered. The opinion shows that the examiner considered all relevant evidence of record, including the Veteran's statements. The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in September 2014. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court of Appeals for Veterans Claims (the Court) held that 38 C.F.R. § 3.103 (c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the September 2014 hearing, the undersigned Veterans Law Judge noted the issue on appeal. Also, information was solicited regarding the Veteran's in-service chest pain and his contention that his current chest pain is a result of his military service. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the undersigned remanded the case in order to obtain an examination with a medical opinion. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim decided herein. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103 (c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The AOJ has substantially complied with the Board's August 2012 and July 2015 remand directives. Specifically, the August 2012 remand directed the RO to afford the Veteran a new Board hearing (which was accomplished in September 2014). The July 2015 remand directed the RO to afford the Veteran a VA heart examination (which was accomplished in January 2016). Therefore, the Board finds that the AOJ has substantially complied with the August 2012 and July 2015 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). II. Analysis Service connection will be granted for a disability that was caused or aggravated by a disease or injury in active military service. 38 U.S.C.A. § 1110. Service connection requires evidence of 1) an in-service disease or injury; 2) a current disease or disability; and 3) a nexus between the in-service event and the current disease or disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Hypertension is a chronic disability and a nexus to service is presumed if it manifests to a compensable degree within a year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 n.1 (2016). For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). Hypertension is a chronic disability recognized under 38 C.F.R. § 3.309(a) and the continuity of symptomatology provisions are applicable. Id. Under 38 C.F.R. § 3.303(b), continuity of symptomatology may be established if a claimant can demonstrate (1) that a 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2016). In service, a June 2000 VA examination report showed a blood pressure reading of 120/90. When the Veteran initially sought VA care in May 2001 (within one year of his discharge from military service), he was diagnosed as having mild pulmonary hypertension. In May 2002, his blood pressure reading was 160/70; and in August 2002, it was 136/93. More recent VA treatment records show the following readings: 144/99 and 140/90 in April 2013; 144/93 and 134/94 in January 2014; and 129/92 and 134/94 in August 2015. Updated VA treatment records suggest continued twice daily use of hypertension medication, and reflect a current diagnosis for hypertension. See January 2014 and October 2015 VA treatment records. Resolving reasonable doubt in favor of the Veteran, there is competent evidence of hypertension within one year of the Veteran's separation from active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The criteria for service connection for hypertension are met and the claim is granted. 38 U.S.C.A. § 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. Hypertension was not shown to a compensable degree within one year of service. Cf. Diagnostic Code 7101 (providing compensable ratings for hypertension when diastolic reading are predominantly 100 or more; systolic readings are predominantly 160 or more; or there is a history of diastolic readings predominantly of 100 or more that requires continuous medication for control). The record does; however, show a pattern of predominantly elevated blood pressure readings beginning in service. The record shows that the Veteran's blood pressure is currently within normal limits, but only with the use of medication. Resolving all doubt in the Veteran's favor, this record supports a finding that he has current hypertension that began in service. Post-service treatment records reveal that the Veteran was diagnosed as having pericarditis in May 2001. The Veteran was discharged from the hospital in May 2001 with the diagnosis of "resolved pericarditis." As noted in the January 2016 VA examination report, acute pericarditis was suspected based on 1) nonspecific EKG (electrocardiogram) findings in 2001 and 2) chest pressure that was relieved by Motrin, but the diagnosis of pericarditis could not be verified via the echocardiogram done in 2001. The VA examiner diagnosed pericarditis, resolved in May 2001, without further intervention. While the Veteran's VA treatment records show a diagnosis of pericarditis that was resolved May 2001, and the Veteran claims he is still suffering with pericarditis, the evidence is against finding a current disability. A current disability is one shown near or after the current claim for benefits. Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). While the Veteran would be competent to report his symptoms, he lacks the medical expertise required to diagnose the symptoms as pericarditis. No competent medical professional has found that the Veteran has current pericarditis. His treatment providers and VA examiners have not found that disability; or any cardiovascular disease other than hypertension; although his reports of atypical chest pain have been noted. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." The Veteran has not met the service-connection element that requires a current disease or disability, for a heart disorder other than hypertension. The weight of the evidence is against such service connection and that part of the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014). ORDER Service connection for hypertension is granted. Service connection for a heart disorder, other than hypertension, is denied. REMAND The January 2016 VA examiner opined that, although the Veteran was diagnosed in February 2005 with mild obstructive sleep apnea (OSA), his study results did not meet the current criteria for an OSA diagnosis. The examiner additionally noted "subsequent sleep studies were allegedly done, but results are not available to the examiner." Before the Board can adjudicate the Veteran's claim, attempts must be made to obtain outstanding records and associate the records with the claims file. 38 U.S.C.A. § 5103A(b)-(c). Additionally, the Veteran reported in a June 2016 statement that he was diagnosed with sleep apnea upon completing a sleep study test at Bremerton Naval Hospital in or around the year 2000. He wrote that this information could be found on "page 21 of the evidence file." The Board has reviewed the particular file referenced by the Veteran and found a note in a May 2002 report that the Veteran underwent an extensive three-day inpatient study at Bremerton Naval Hospital in July 2000 while on active duty, and been diagnosed with sleep apnea. The Board has reviewed the electronic claims file but the Veteran's July 2000 sleep study results have not been associated with the claims file. On remand, the Veteran's sleep study report done in or around the year 2000 at Bremerton Naval Hospital must be associated with the electronic claims file. The Veteran should also be afforded another VA examination, to include a sleep study. Further, the Veteran provided an opinion from a private provider that suggested "a possible association between sleep apnea and hypertension." This opinion did not provide a rationale. In light of the Veteran being granted service connection for hypertension, VA has a duty to obtain an opinion as to the relationship, if any, between any current OSA and the service-connected hypertension, See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file records Veteran's in patient treatment at Bremerton Naval Hospital, including any sleep study in or around July 2000. 2. Ask the Veteran to identify by name, address and dates of treatment or examination any relevant medical records pertaining to his claimed sleep apnea and to authorize VA to obtain these records or to submit the records himself. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain identified records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine whether he has a current sleep disorder that due to a disease or injury in service. The examiner should review the claims file. Any indicated tests and studies must be accomplished, to specifically include a sleep study (if feasible); The examiner should provide reasons for the opinions. The examiner should provide the following information and opinions: a. whether the Veteran currently has sleep apnea (or has had that disability at any time since 2006). b. if so, whether the Veteran's current sleep apnea, at least as likely as not, had its onset in service or is otherwise the result of an in-service disease or injury. The examiner should discuss the Veteran's reports of in-service difficulty sleeping and the associated symptoms, including dizziness and headaches, as well as his statements regarding the provisional diagnosis of sleep apnea following the results of an echocardiogram in May 2001. The examiner should opine whether the Veteran's reports, if accepted would be sufficient to show (at least as likely as not) that sleep apnea began in service; and whether there is any medical reason for rejecting the Veteran's reports. The absence of supporting medical records is not a legally sufficient reason to reject the Veteran's reports, unless the existence of the reports would be medically expected. c. if not due to service, whether current sleep apnea is proximately due to or aggravated by hypertension. If aggravated, the examiner should state whether there is medical evidence created prior to aggravation or at any time between aggravation and the current level of disability that establishes a baseline of sleep apnea prior to aggravation. The examiner must address the evidence suggesting a possible link between sleep apnea and hypertension. If a requested opinion cannot be provided without resorting to speculation, the examiner should state whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. 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 of Veterans' Appeals 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs