Citation Nr: 1754595 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-21 790A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for a right wrist disability. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from July 1985 to April 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In May 2015, the Veteran testified at a videoconference hearing before the undersigned. In July 2015, the Board remanded the appeal for further development. FINDINGS OF FACT 1. The Veteran's hypertension, cervical spine disability, and bilateral knee disability were not caused or aggravated by a disease or injury in active service. 2. Current sleep apnea began in active service. 3. A current right wrist disability has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1154(a), 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307(a)(3), 3.309(a), 4.104, Diagnostic Code (DC) 7101, Note 1 (2017). 2. The criteria for service connection for obstructive sleep apnea have been met. See 38 U.S.C. §§ 1101, 1131, 1137, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303, 3.102 (2017). 3. The criteria for service connection for a right wrist disability have not been met. See 38 U.S.C. §§ 1101, 1131, 1137, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.102 (2017). 4. The criteria for service connection for a cervical spine disability have not been met. See 38 U.S.C. §§ 1101, 1112, 1113, 1137, 1131, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307(a)(3), 3.309(a), 3.102 (2017). 5. The criteria for service connection for a bilateral knee disability have not been met. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1131, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307(a)(3), 3.309(a), 3.102 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. § 1131; 38 C.F.R. § 3.303(a). 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). Service connection requires evidence showing: (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). Additionally, a chronic disease becoming manifest in service and at any time thereafter; or to a degree of 10 percent or more within one year of separation from service will be considered to have been incurred in service even though there is no record of such disease during service. 38 U.S.C. § 1112, 1137 (2012). Hypertension and arthritis are listed chronic diseases. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Hypertension The Veteran's hypertension claim requires analysis under both the presumptive and direct theories of service connection. The Veteran testified that he became aware of hypertension during service in April 1986, when he was put on a profile and underwent a five day blood pressure check. He said that he underwent the same checks on two occasions later in service. Service treatment records show only a single elevated reading in 1986 with all other readings in service being normal. As recently as 2007, VA treatment records did not list hypertension among his problems. In May 2007 he was found to have elevated blood pressure and started on medication. There was no mention of any in-service history of elevated blood pressure. Although the Veteran has provided competent testimony reporting a history of hypertension in service; this is contradicted by the normal readings in service and the absence of any such history in the post-service treatment records or any mention of hypertension until almost two decades after service. The Veteran's recollections made many years after service are less probative than objective measurements of his blood pressure reported in service, and the history reported to his treatment providers. The Board highlights the September 2015 VA medical opinion, which considered the Veteran's April 1986 elevated blood pressure reading, but explained that this isolated elevation did not indicate onset of hypertension and, in fact, the Veteran had multiple normal blood pressure readings before and after that elevation; the examiner also noted that the Veteran's 2007 diagnosis was made after the Veteran had elevated blood pressure readings on a sustained basis. Although the Veteran contended that the April 1986 elevation was not isolated, it is the only in-service reading that meets the definition of hypertension for VA purposes (systolic of 160 mm Hg or greater or diastolic of 90 mm Hg or greater). See 38 C.F.R. § 4.104, DC 7101, Note 1. As the most probative evidence is against the claim, reasonable doubt does not arise and the claim is denied. Sleep Apnea The Veteran's sleep apnea requires analysis under the direct theory of service connection. The first element of service connection, a current disability, is satisfied in that VA treatment records document sleep apnea since 2005. The Veteran testified that he experienced loud snoring, interrupted sleep and resultant headaches during service. He submitted a statement from a fellow service member reporting that they had been roommates while serving in Germany from "1980 to 1987." The roommate recalled that the Veteran snored loudly, and seemed to stop breathing as he slept. A June 2014 private opinion stated that, given the Veteran's history, the sleep apnea "likely was present since 1989." A VA examiner in September 2015 reportedly considered the Veteran's statements regarding in-service snoring and headaches and the August 2013 roommate's statement, but explained that the cumulation of the described symptoms did not equate to a finding of in-service sleep apnea; the examiner dismissed the June 2014 private opinion as mere speculation and, according to UpToDate, the Veteran has other pertinent risk factors, such as advancing age, male gender, and obesity. There are problems with both the favorable and unfavorable evidence with regard to this issue. The roommate's statement reported that they were roommates for years prior to the date the Veteran actually entered service. The private medical opinion dated the presence of sleep apnea in the year after discharge from service. The VA medical opinion professed that it considered the favorable evidence, but did not explain why the competent reports of symptoms in service were not diagnostic of sleep apnea and it did not reflect consideration of the reports of stopped breathing. It relied on UpToDate, but the risk factors listed in that data base would only be relevant if the in-service-symptoms were discredited or ignored. At this point the favorable and negative evidence appears to be in equipoise. Resolving reasonable doubt in the Veteran's favor, service connection for sleep apnea is granted. Right Wrist The Veteran testified that he began to experience right wrist symptoms in January 1987 with symptoms continuing until April 1987. He reported no specific injury, but believed his symptoms developed due to repetitive motion. In follow up treatment he was diagnosed as having tendonitis. He did not have additional problems until approximately the early 1990's. Symptoms had been off and on since then. Service treatment records confirm that the Veteran complained of right wrist pain in January 1987 and the assessment was "suspect tendonitis." He continued to be seen until March 1987, when the assessment was resolving tendonitis. The September 2015 examiner assessed no current wrist disability; and no residuals of resolved right wrist tendonitis from 1987. Available VA and private treatment records for the period since 2005, do not report any findings or complaints related to the right wrist. Although the Veteran contended that he was diagnosed with right wrist strain by his primary care physician in 2015, these records are not associated with the claims file. Per the July 2015 Board remand, the Veteran authorized VA to obtain additional records, which VA sought. As the Veteran has not provided specifics regarding the diagnosing physician, VA is not obligated to seek these records. The Veteran is competent to report symptoms of a wrist disability and what his private physician diagnoses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The credibility of these reports is diminished by clinical record which fails to show that he ever reported wrist symptoms after service. Although he reported treatment for this disability by a "civilian" physician after service; the VA treatment records include detailed lists of his medical problems but do not mention the wrist. Available private records also fail to mention the wrist. The weight of the evidence is; accordingly, against finding a current disability. Cervical Spine The Veteran's cervical spine disability requires analysis under both the presumptive and direct theories of service connection, because there is evidence of current arthritis, a listed chronic disease. However, presumptive service connection is not warranted because the disability did not manifest to a compensable degree of 10 percent or more within one year from separation. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service treatment records show the Veteran was seen in January 1987 when the assessment was neck strain. At his hearing the Veteran reported treatment for neck symptoms in August 1987. He did not recall any specific injury. The disability was on and off and he was given a profile. He said that he saw a doctor about this a few years after service, probably in the early 1990's. He was currently taking anti-inflammatory medications. The VA treatment records from 2007 do not list a neck disability on his problem list or otherwise document ongoing neck disability from service. The Board highlights the September 2015 VA opinion, which considered the Veteran's report that he had been diagnosed as having neck strain in February 2015, by his primary care provider, April 2015 diagnosis of degenerative joint disease, and resolved neck strain from August 1987, but explained that there is no medical evidence that the in-service strain has caused the current conditions, as the in-service strain was treated conservatively and had no residuals. The Veteran's testimony acknowledges that there was not continuous neck symptomatology after being seen in service. The VA and private treatment records indicate there was no ongoing disability. Hence, the weight of the evidence is against finding a continuity of symptoms and the only medical opinion is against a nexus to service. The weight of the evidence is against the claim; reasonable doubt does not arise and the claim must be denied. Knees The Veteran's bilateral knee disability also requires analysis under both the presumptive and direct theories of service connection, because of current diagnoses of arthritis. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran testified that problems with his knees began in service and had continued since; but on further testimony reported that the history was similar to that of the neck disability with symptoms being off and on. Service treatment records show that he was seen in December 1986, when he reported a one year history of left knee pain. There had been no specific injury, but there was occasional swelling. No abnormalities were found on examination, but there was an assessment of "Suspect P.F. [patello-femoral] Syn[drome]." The VA problem list and treatment records do not show a knee disability in 2007 or 2008. Recent private treatment records document bilateral knee arthritis and the Veteran's report of an unspecified long history. Presumptive service connection is not warranted because the disability did not manifest to a compensable degree of 10 percent or more within one year from separation. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has not reported the presence of such a disability in the year after service and the clinical record shows no disability within the year after service. Further, direct service connection is not warranted because the Veteran has not clearly reported a continuity of symptoms and the clinical records do not document any ongoing knee disability from service. The September 2015 VA opinion considered the current diagnosis and the resolved left patellofemoral pain syndrome from December 1986, but explained that the in-service condition would not be anticipated to cause early onset arthritis or any other future knee problem; the examiner also noted that, according to UpToDate, the Veteran has other pertinent risk factors, such as advanced age and obesity. As the Veteran does not have the medical background necessary to determine etiology for this disability and the September 2015 opinion contained rationale and considered the medical and lay evidence, the September 2015 opinion is more probative. As such, service connection must be denied. ORDER Service connection for hypertension is denied. Service connection for obstructive sleep apnea is granted. Service connection for a right wrist disability is denied. Service connection for a cervical spine disability is denied. Service connection for a bilateral knee disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs