Citation Nr: 1753966 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-07 323A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES Entitlement to service connection for hypertension. Entitlement to service connection for sleep apnea. Entitlement to service connection for diabetes mellitus type II, to include as due to Agent Orange. REPRESENTATION Appellant represented by: Alan A. Watt, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Monrose, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). The Veteran had previously been represented by the National Association of County Veterans Service Officers. However, in July 2017, the Veteran appointed a new representative, Alan A. Watt, Agent. This change is noted on the title page of this decision. The issue of service connection for obstructive sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's hypertension is not related to any event of service and did not manifest to a compensable degree within one year of service. 2. The Veteran's diabetes mellitus was not incurred or caused by active military service, to include exposure to Agent Orange. CONCLUSION OF LAW 1. The critera for service connection for hypertension have not been met.. 38 U.S.C.A. §§ 1112, 1131, 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a), Diagnostic Code 7101 (2017). 2. The criteria for service connection for diabetes mellitus as result of Agent Orange exposure, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.310, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Hypertension The Veteran contends that his hypertension was incurred in or caused by his military service. For the reasons stated below, the Board disagrees. The evidence of records shows that the Veteran has a current diagnosis. The Veteran's private treatment records show a diagnosis of hypertension that was controlled with medication. See Sharp Rees-Stealy Medical Group medical records dated July 2013. The first element of service connection is therefore demonstrated. The record below does not show an in-service disease. The Veteran's hypertension is rated under Diagnostic Code 7101. To establish a service connection for hypertension, Diagnostic Code 7101, Note 1, requires diastolic readings of 90 or more and confirmed by two or more readings over three days. The Veteran had an elevated blood pressure reading of 134/80 in December 1984. See STRs. In addition, the Veteran had a high blood pressure reading of 132/90 in January 1985. Id. On January 15, 1986, there is a notation that states that the Veteran does not have hypertension. Id. In August 1986, the Veteran's blood pressure reading was 130/78. Id. However, the Veteran did not have a diastolic reading of 90 or more confirmed by two or more readings over the course of three days. The Board finds that the second element for establishing a service connection has not been met. There is also no competent evidence of a nexus between the Veteran's hypertension and any incident of active duty service. While there is a favorable nexus opinion of record from a private physician at Sharp Rees-Stealy Medical Group dated February 2014, the opinion notes a single elevated blood pressure reading in service that includes a diastolic reading of 90 or more. Moreover , the statement did not provide an explanation for the connection between the Veteran's military service and his condition other than stating that "[i]t is conceivable that he might have had the start of his essential hypertension then." Thus, the Board finds that the medical opinion from Sharp Rees-Stealy Medical Group is inadequate because it is speculative and fails to include a clear rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board finds that the third element for establishing a service connection claim on a direct basis has not been met. The Board has considered the Veteran's statements of a link between hypertension and service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the onset and etiology of his hypertension simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, while the Board finds a current disability is demonstrated, the evidence weighs against a finding of an in-service injury or a nexus between the Veteran's hypertension and active duty. The Board will now address the Veteran's contentions regarding service connection on a presumptive basis. For certain chronic disorders, including hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2012); 38 C.F.R. §§ 3.307, 3.309, 3.384 (2017). The Veteran testified that he was diagnosed and treated for hypertension in the 1980s. June 2017 Board Hr. Tr. p. 6. The Veteran was diagnosed with benign essential blood pressure in May 2010. See Sharp Rees-Stealy Medical Group private treatment records. However, there is an absence of evidence that shows a diagnosis of high blood pressure within one year following separation from service. Without competent evidence supporting the Veteran's claim, the Board finds that a service connection for hypertension on a presumptive basis must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. 49 (1990). Diabetes Mellitus The Veteran contends that his diabetes mellitus was caused by exposure to Agent Orange when he was transported from his ship through Vietnam to the Philippines for leave. Alternatively, the Veteran contends that his diabetes mellitus was incurred in service. A review of the Veteran's post-service treatment records reflects his diagnosis of diabetes mellitus. See private treatment records from Sharp Rees-Stealy Medical Group dated July 2000. For these reasons, the Board finds that the evidence establishes that the Veteran has a current disability. The evidence of record does not show an in-service diagnosis, treatment, or complaints related to diabetes mellitus. In private treatment records from the Rees-Stealy Group dated February 2014, the physician noted that the Veteran's STRs from April 1981 showed a trace of sugar in his urinalysis. The physician opined that it was more likely than not that the Veteran's diabetes were incurred or was aggravated during his active duty military service. Id. However, this opinion is inadequate because it is speculative as it suggests that it is "conceivable" that the Veteran's diabetes mellitus started back then and notes that updated bloodwork and urinalysis was unavailable. See Stefl, 21 Vet. App. at 124. The Veteran does not contend nor does the record show that the Veteran was diagnosed with diabetes mellitus in the military. The notation of a trace if sugar in his urine in 1981 was an isolated finding. In fact, in a dental questionnaire dated September 1984, the Veteran indicated that he was not under the care of a physician for the treatment of diabetes. On January 15, 1986, there is a notation in the Veteran's STRs that he does not have diabetes. The second element for establishing a service connection for diabetes on a direct basis has not been met, since there is no evidence of the development of a chronic disease in service. Given that the Veteran does not have an in-service treatment or diagnosis for diabetes mellitus, it follows that he cannot make a connection between an in-service disease and active military service. Thus, the Board finds that the third element for establishing a service connection for diabetes mellitus on direct basis is lacking and is denied. The Veteran is not entitled to service connection for diabetes on presumptive basis under 38 C.F.R. § 3.309(a). The Veteran's post-service treatment records do not show complaints, diagnosis, or treatment for diabetes mellitus within one year after he left the military. The Veteran was first diagnosed with diabetes mellitus in July 2000, almost 15 years after he left the military. See Sharp Rees-Stealy Medical Group. Although, a private treatment physician indicated that he had a nonfasting glucose reading of 445 in January 1996, there is no indication that it resulted in a diagnosis of diabetes mellitus. However, even if this condition had been diagnosed in 1996, this is 10 years after his separation from service. Id. In the absence of such evidence, the Board finds that the Veteran is not entitled to service connection for diabetes on a presumptive basis under 38 C.F.R. § 3.309(a). The Board will now determine whether the Veteran is entitled to service connection for diabetes based on exposure to Agent Orange. The Board notes that Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). In Haas v. Peake, 525 F.3d 1168 (2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA's regulation defining "served in the Republic of Vietnam," to mean "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam," was reasonably interpreted by VA to require that a service-member must set foot within land borders of Vietnam in order to be entitled to statutory presumptions of both exposure and service connection for specified diseases under the Act. The evidence of record does not show that the Veteran is entitled to service connection for diabetes on a presumptive basis due to exposure to Agent Orange in Vietnam under 38 C.F.R. § 3.309(e). The Veteran's MOS was an afloat sales and service specialist onboard the USS Ranger. DD-214. The Veteran's military personnel records show that he was in the Philippines in 1971 and Italy in 1986. The Veteran's statement indicates that between February 1972 and May 1974, he was exposed to Agent Orange when he was transported to Da Nang airbase in Vietnam on his way to the Philippines for leave. See statement received October 2011. The evidence of record contains a buddy statement confirming that the Veteran was aboard the USS Ranger from February 1972 to May 1974. See Statement dated June 2012. The Veteran received a Vietnam service medal. Nonetheless, a formal finding that there was insufficient information to verify the Veteran's in-country service in the Republic of Vietnam was issued in April 2013. Here, there is no evidence that the Veteran set foot in Vietnam. While the buddy statement indicates that the Veteran was around Vietnam during the relevant period, it is ambiguous whether he was actually on the mainland of the Republic of Vietnam. While the Veteran's personnel records corroborate that he was in the Philippines, it was in 1971, not between 1972 and 1974. Moreover, there is no evidence that he arrived in the Philippines from the Republic of Vietnam. While the Veteran is competent to state that he was present in the Philippines during the 1970s, the available evidence of record does not support his statement that he was set foot in the Republic of Vietnam. Accordingly, the Board finds that a presumptive service connection for diabetes mellitus based on exposure to Agent Orange is not warranted. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not applicable. Gilbert, 1 Vet. 49. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus II, to include as due to Agent Orange, is denied. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). An appellant and his or her representative, if any, will be granted a period of 90 days after an appeal has been certified to the Board to submit ... additional evidence[.] 38 C.F.R. § 20.1304(a) (2017). Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section ... must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative. 38 C.F.R. § 20.1304(c) (2017). In August 2017, the Veteran submitted additional evidence regarding his sleep apnea from Sleep Disorder Associates without a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2017). Therefore, the Board will remand this issue so that the AOJ may consider the evidence. Accordingly, the case is REMANDED for the following action: Obtain any outstanding relevant VA or private treatment records identified by the Veteran or his representative. All records obtained, to include the private treatment records received in August 2017, must then be reviewed by the AOJ. Following review of this evidence, if the benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs