Citation Nr: 1752845 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-06 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a sleep disorder, claimed as irregular sleep patterns, to include as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2016, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2017, the Board remanded the current issues to obtain additional treatment records and VA examinations. There has been substantial compliance with the Board's remand orders, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VETERAN'S CONTENTIONS The Veteran is seeking service connection for hypertension and a sleep disorder. Regarding hypertension, the Veteran has explained that, although he was not diagnosed with that condition until 2009, elevated blood pressure readings were documented as early as 1991. He testified during his hearing that he did not start seeing a doctor for elevated blood pressure soon after service, but then added that he may have been evaluated for such symptoms within a year of separation. The Veteran has also asserted that his current hypertension may have been caused or aggravated by his service-connected PTSD. Regarding a sleep disorder, the Veteran has described symptoms that he believes are related to service or his service-connected PTSD. Specifically, he has described erratic sleep (sometimes staying up all night and sometimes sleeping for a day and a half); restlessness at night; waking up gasping for air; difficulty falling asleep; and difficulty remaining asleep, including due to nightmares. He also testified during his hearing that his wife told him he stopped breathing and snored while sleeping, and that his physician believed he should undergo testing for sleep apnea. FINDINGS OF FACT 1. Several elevated blood pressure readings, as identified by an April 2017 VA examiner, were documented by clinicians during the Veteran's period of service. 2. The first post-service blood pressure readings of record-documented during treatment in August, September, and November 1996-were 131/77, 136/76, and 128/76. 3. The medical evidence of record reflects that the Veteran was initially diagnosed with hypertension and prescribed medication to treat that condition in 2009; he has not disputed the timing of that diagnosis. 4. The most probative evidence of record is against finding that the Veteran's hypertension manifested during service, manifested within a year of service, is otherwise related to service, or was caused or aggravated by his service-connected PTSD. 5. The competent evidence of record, including a sleep study conducted in August 2016, does not establish a diagnosis of sleep apnea. 6. The preponderance of the evidence establishes that the Veteran's current sleep disturbances are symptoms of his service-connected PTSD rather than a separate sleep disorder. 7. The Veteran's service-connected PTSD is rated based on symptoms that include "chronic sleep impairment." CONCLUSIONS OF LAW 1. The requirements for establishing service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The requirements for establishing service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310, 4.14 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hypertension A. Direct Service Connection As was noted in the foregoing factual findings, the Veteran was initially diagnosed with hypertension in 2009, but several elevated blood pressure readings were documented during his period of service. Thus, the remaining questions are whether a causal relationship exists between the Veteran's current hypertension and those elevated blood pressure readings or, as hypertension is one of the conditions listed in 38 C.F.R. § 3.309(a), whether service connection may be established based on the chronic disease presumption. See 38 U.S.C. §§ 1110, 1112(a), 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Unfortunately, both questions must be answered in the negative. The most probative evidence of record addressing the foregoing questions is the opinion of an April 2017 VA examiner. That examiner reviewed the Veteran's claims file, provided a list of the blood pressure readings documented in the file from 1988, forward, and concluded that the Veteran's current hypertension was less likely than not incurred in or caused by service. He explained that, although there were readings in what he characterized as the "hypertensive range" during the Veteran's period of service, his blood pressure was normal following repeat testing. The return of the readings to the normal range, the examiner explained, did not support a diagnosis of "sustained elevated BP, i.e., hypertension." See April 2017 Medical Opinion Disability Benefits Questionnaire (DBQ) at 4; see also 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2017) (explaining that, for VA purposes, "hypertension" means diastolic blood pressure of predominantly 90 mm. or greater, and "isolated systolic hypertension" means systolic blood pressure of predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.). The examiner further noted that one of the elevated readings was taken during acute pain associated with a hand contusion and that elevated blood pressure readings during pain were to be expected. Regarding the possibility that the Veteran's hypertension manifested within a year of his discharge from service, the examiner acknowledged the Veteran's report, during his Board hearing, of initially having his blood pressure checked, post-service, about one year after discharge. However, the examiner noted that the only readings taken around that time were conducted approximately a year and a half after his discharge, and were within the normal range. The 2017 examiner's opinion is highly probative, because it was based on a thorough review of the claims file, addressed the relevant facts and medical science, and included a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, there is no competent opinion of record that contradicts it, as the only other evidence that speaks to the questions at issue here is the Veteran's lay assertion that his hypertension began during service. The Board certainly does not dispute that the Veteran is competent to report on his symptoms and other matters about which he has personal knowledge, but he is not competent to provide an opinion as to the diagnosis or etiology of his hypertension, because such questions are not within the realm of knowledge of a layperson. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Veteran's opinions as to the diagnosis and etiology of his hypertension are not competent medical evidence. Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. In short, the preponderance of the probative evidence indicates that the Veteran does not have hypertension that manifested in service, that manifested within one year of his discharge from service, or that is otherwise related to service; therefore, service connection is not warranted on a direct basis. B. Secondary Service Connection The Board turns, then, to the Veteran's assertion that his hypertension was caused or aggravated by his service-connected PTSD. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board finds that the opinion of the 2017 VA examiner, who concluded that the Veteran's hypertension was less likely than not caused or aggravated by that service-connected disability, is also the most probative evidence of record addressing that question. The examiner explained that essential hypertension, such as the Veteran's, does not have a clear etiology or cause, but further noted that current peer-reviewed medical literature does not support a finding that psychiatric conditions are a contributing factor even for secondary hypertension. The examiner went on to explain that psychological conditions, including PTSD, are not documented to have any permanent effect on vascular volume and peripheral vascular resistance-the two determinants of blood pressure. As the VA examiner again provided a rationale that addressed the relevant facts and medical science, the Board finds his opinion highly probative. Stefl, 21 Vet. App. at 124. The only opinion that opposes the opinion of the VA examiner is again the Veteran's. However, as was already explained, he is not competent to opine on such matters. Layno, 6 Vet. at 469-70 (1994); Jandreau, 492 F.3d at 1377. Thus, the preponderance of the probative evidence indicates that service connection for hypertension is also not warranted on a secondary basis. Sleep Disorder Resolution of the Veteran's claim of entitlement to service connection for a sleep disorder turns on a different type of question-whether he has a sleep-related condition separate and apart from the symptoms of his already service-connected PTSD. The Board finds that he does not and that, as a result, service connection for a sleep disorder is not warranted. Turning first to the Veteran's assertion that he has sleep apnea, the Board finds that a diagnosis of that condition is not established by the competent evidence of record. In so finding, it acknowledges that the record documents some symptoms that are typically associated with sleep apnea. Specifically, the Veteran and his wife have reported that the Veteran snores, stops breathing while sleeping, and wakes up gasping for air. However, the Veteran underwent a sleep study in August 2016, and the results of that study were characterized as normal. Although the Board has considered the symptoms described by the Veteran and his wife and acknowledges that a layperson can observe disturbed sleep, sleep apnea is a diagnosis that requires medical knowledge (and diagnostic studies). See Jandreau, 492 F.3d 1372. As such a diagnosis was not deemed appropriate following a sleep study and is not confirmed by clinicians elsewhere in the record, and as the Veteran and his wife have not been shown to have medical expertise, the preponderance of the evidence is against finding that service connection for sleep apnea, specifically, is warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). The competent evidence of record also does not reflect that the Veteran has any other sleep disorder distinct from the symptoms of his already service-connected PTSD. In that regard, symptoms of irregular sleep, difficulty falling or staying asleep, nightmares, and restlessness have been attributed to his PTSD by VA examiners throughout the claim period. See February 2012 Initial PTSD Disability Benefits Questionnaire (DBQ) at 11; July 2014 PTSD DBQ at 8; May 2017 PTSD DBQ at 4. Additionally, in September 2014, a VA clinician was asked to determine whether the Veteran's sleep problems, characterized as "irregular sleep patterns," were symptoms of his PTSD or symptoms of sleep apnea, and she concluded that it was at least as likely as not that the Veteran's sleep disturbances were related to his psychiatric diagnosis. She noted that the Veteran's primary complaint was related to insomnia, which is not caused by sleep apnea, and that his described symptoms were frequently related to his psychiatric diagnoses by medical providers. The Board acknowledges that the examiner who conducted a VA PTSD examination in May 2017 concluded, in contrast, that she could not, based on application of current medical knowledge, determine whether the Veteran's symptoms of insomnia began during his period of active duty service, were secondary to his PTSD diagnosis, or were related to other factors. Notably, however, the Veteran told the examiner that his current sleep problems, which he described as disturbed periods of sleep, including wakefulness in the middle of the night, began in 1996-approximately two years after his separation from service. More to the point, as was already referenced, that examiner included "chronic sleep impairment" as one of the symptoms that actively applied to the Veteran's PTSD diagnosis, in spite of her separate assertion that it was medically impossible to determine the cause of his sleep problems. In short, the Board finds that the preponderance of the evidence establishes that the Veteran's sleep disturbances are manifestations of his service-connected PTSD, not of a separately diagnosed sleep disorder. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (listing chronic sleep impairment as one of the symptoms to be considered when rating psychiatric disabilities). More importantly, the disability evaluations assigned for the Veteran's PTSD throughout the course of this claim period have been based on symptoms that specifically included chronic sleep impairment. See February 2012, September 2014, and July 2016 rating decisions. Thus, even assuming that a distinct sleep disorder could be established based on the Veteran's reported symptoms, assigning it a separate, compensable rating would violate the rule against pyramiding, because the same symptoms would be rated twice. See 38 C.F.R. § 4.14 (pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided). In summary, the Veteran is not shown to have sleep apnea, and a separate compensable rating for the sleep disturbances that the preponderance of the evidence establishes are manifestations of his service-connected PTSD is prohibited by governing regulation. As a result, service connection for a sleep disorder must be denied. As the preponderance of the evidence is against both of the Veteran's claims, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for hypertension is denied. Service connection for a sleep disorder is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs