Citation Nr: 1801325 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-07 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for heart disease. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Michael Eby II, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from November 1993 to August 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in October 2015, and a transcript of the hearing is associated with his claims folder. The issues currently on appeal were remanded in February 2016 for further development. At that time, the Board disposed of a number of other issues and also remanded the matter of service connection for a gastrointestinal disability to the RO. Service connection has since been granted for irritable bowel syndrome in September 2016, so service connection for a gastrointestinal disability will not be addressed herein. FINDINGS OF FACT 1. The Veteran's current heart diseases are known and medically explained clinical diagnoses which were not manifest in service or, for hypertensive heart disease, to a degree of 10 percent within 1 year of separation; and are unrelated to service. 2. The Veteran's current obstructive sleep apnea is a known and medically explained clinical diagnosis which was not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disease are not met. 38 U.S.C.A. §§ 1110, 1117, 1118, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.317 (2016). 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1117, 1118, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.317 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for heart disease, and for sleep apnea, including on the theory that they are due to his service in Southwest Asia, including environmental exposures therein, with dust storms specifically being mentioned. Service in Southwest Asia is demonstrated. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arteriosclerosis and cardiovascular-renal disease, including hypertension, are listed as chronic diseases. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of "qualifying chronic disability," a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C.A. § 1117 . An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). A "qualifying chronic disability" is defined, in part, as an undiagnosed illness. 38 C.F.R. § 3.317 (a)(2)(i)(A). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Heart disease Based on the evidence, the Board concludes that service connection is not warranted for heart disease. The preponderance of the evidence shows that the Veteran's current heart disease, including cardiomyopathy, pericarditis, and/or hypertension/hypertensive heart disease (with congestive heart failure) was not manifest in service and is unrelated to service, and that none including hypertension/cardiovascular-renal disease was manifest to a degree of 10 percent within 1 year of separation. The Veteran's service treatment records are silent for reference to these. Additionally, the Veteran was normal on service entrance examination; and in February 1994, May 1995, and March 1996, he reported that he had had no changes in his health in the past 2 years. And no evidence, including the Veteran's August 2001 VA Form 21-526 and medical records, which show that heart disability began in May 2001, shows that they were present any earlier than 2001, which was about 5 years post-service. Furthermore, the VA examiner in June 2016 indicated that the Veteran's cardiomyopathy/hypertensive heart disease would not be related to service in Southwest Asia. The reasons were because it was felt to be secondary to longstanding poorly controlled blood pressure. Thus, it was less likely than not due to service in Southwest Asia. The examiner stated that the Veteran had an echocardiogram from 2005 showing concentric left ventricular hypertrophy and left ventricular enlargement. The most common causes of these abnormalities, the examiner stated, is hypertension, which the preponderance of the evidence shows was not manifest in service or to a degree of 10 percent within 1 year of separation. As for the Veteran's pericarditis, the VA examiner in June 2016 stated that since the Veteran's pericarditis occurred long after service, it is less likely than not due to service. The examiner indicated that if it were related to some infectious cause from service, it would have manifested much sooner; and that environmental exposures, such as sand storms, are not known to cause it. The matter of relationship to service pursuant to 38 C.F.R. § 3.317 and undiagnosed illness or medically unexplained multisymptom illness has also been considered. However, the preponderance of the evidence including the April 2014 and June 2016 VA examination reports shows that each diagnosed heart disorder is a known clinical diagnosis. Additionally, the Veteran's cardiomyopathy/hypertensive heart disease has a known etiology, further precluding it from being recognized as service-connected under 38 C.F.R. § 3.317. This disorder is felt to be secondary to longstanding poorly controlled hypertension. Furthermore, his pericarditis, according to the VA examiner in June 2016, is a condition with a known diagnosis and partially explainable etiology. By implication, the examiner indicated that it can be caused by infection. The examiner indicated that the exact etiology of any pericarditis is often not determined, and this is the case here. However, chronic multisymptom illnesses of partially understood etiology and pathophysiology are not to be considered as medically unexplained. See 38 C.F.R. § 3.317(a)(3). Additionally, the examiner in June 2016 stated that as the pericarditis occurred long after service, it is less likely than not due to service. The examiner indicated that if it were related to some infectious cause from service, it would have manifested much sooner; and that environmental exposures, such as sand storms, are not known to cause it. This is affirmative evidence that the disability was not incurred during service in Southwest Asia, further precluding service connection. See 38 C.F.R. § 3.317(a)(7)(i). The opinions of the VA examiner in 2014 are also in the negative, but had shortcomings as noted by the Board in February 2016, and so that is why the Board remanded for the June 2016 VA examination in February 2016. After carefully reviewing the record, the Board concludes that the evidence now of record is adequate to decide this claim, and it is not contended otherwise. Sleep apnea Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's obstructive sleep apnea. The preponderance of the evidence shows that it was not manifest in service and is unrelated to service. The Veteran's service treatment records are silent for reference to it. Additionally, the Veteran was normal on service entrance examination; and in February 1994, May 1995, and March 1996, he reported that he had had no changes in his health in the past 2 years. A May 2008 VA medical record shows that sleep disturbance was listed as an active problem charted in 2005. The Veteran claimed service connection for sleep apnea in November 2010. In February 2011, the Veteran was advised that the risk of being overweight included sleep apnea, and he was offered a program to lose weight, but declined. In April 2011, he was reported to have a sleep disturbance described as being unable to turn his mind off at night and go to sleep. On VA examination in October 2014, essentially, the history was that the Veteran was diagnosed with sleep apnea with a private sleep study in February 2013. He had been having trouble sleeping and was snoring. He was prescribed a C-PAP and was using it with some improvement in his symptoms. His diagnosis was obstructive sleep apnea. The VA examiner in June 2016 indicated that the Veteran's sleep apnea is not known to be caused by environmental exposures, and opined that it was less likely than not due to service. The examiner stated that it is at least as likely as not due to obesity, as this is a common risk factor. The Veteran was, prior to service, at 76.5 inches and about 241 pounds. He was 218 pounds in service at age 20 for a 2nd infantry division medical in-processing after February 1994, and that had been his maximum weight according to the report at the time. So the evidence shows that he lost weight in service and then post-service, he gained about 100 pounds over his pre-service weight. He weighed 349.8 pounds in December 2004, and has been labelled with morbid obesity with his weight stabilizing at about the 340 pound level, more or less. He does not appear to have had any issues with his weight in service, once he lost some pre-service weight. Furthermore, the preponderance of the evidence indicates that his sleep apnea was not manifest until many years after service and is unrelated to service. While he was obese prior to service, the preponderance of the evidence indicates that his sleep apnea did not have its onset in service including from that pre-service obesity or due to any incident of service. To the contrary, the June 2016 VA examination report shows that obesity was only a risk factor for sleep apnea, and the evidence including the October 2014 VA examination report shows that his sleep apnea first occurred years post-service after he became morbidly obese. The VA examiner in October 2014 attributed his sleep apnea to his morbid obesity, which was not present in service. The Veteran has attempted to relate his sleep apnea to in-service environmental exposures occurring in Southwest Asia. However, the VA examiner in June 2016 opined that it is less likely than not due to his service in Southwest Asia, as it is not known to be caused by environmental exposures. Accordingly, service connection is not warranted for his sleep apnea on a direct incurrence basis. The matter of relationship to service pursuant to 38 C.F.R. § 3.317 and undiagnosed illness or medically unexplained multisymptom illness has also been considered, but must be resolved unfavorably to the Veteran, as the preponderance of the evidence is also against an award of service connection for sleep apnea under 38 C.F.R. § 3.317. The VA examiner in June 2016 indicated that the Veteran's sleep apnea is a medically diagnosable illness with a known etiology, naming obesity as a risk factor, and the VA examiner in October 2014 attributed the Veteran's sleep apnea to his morbid obesity, which the record shows only post-service, and indicated that his sleep apnea has a clear etiology. It is not a medically unexplained chronic multisymptom illness as reflected by the evidence, which indicates, in essence, that it was caused by his morbid obesity and thus has a clear etiology. While the opinion of the VA examiner in 2014 had shortcomings, it was in the negative, and now that the June 2016 VA examination report is also of record, and in light of the decision explanations above, the combined evidence of record is satisfactory to decide the claim (and it is not contended otherwise) and works against the claim. The Veteran has essentially argued that the disorders at issue are due to exposures he had in service, specifying dust storms. However, the preponderance of the evidence is against service connection including on this basis, for reasons explained above, and the Veteran being a layperson, is not competent to indicate the cause of these complex medical diseases. Medical expertise is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Board's decision is not favorable to the Veteran, the Board appreciates the Veteran's honorable service to his country, and would like to thank him for it and wish him the best of health and good luck in his endeavors. ORDER Service connection for heart disease is denied. Service connection for obstructive sleep apnea is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs