Citation Nr: 1802225 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-12 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1972 to July 1975, January 2003 to September 2003 and July 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas. The issue of service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Obstructive sleep apnea was not shown in active service or for many years thereafter and is unrelated to active service. CONCLUSION OF LAW The criteria for the establishment of service connection for obstructive sleep apnea are not all met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). A review of the Veteran's service treatment records shows that they are entirely negative of any treatment for or diagnosis of obstructive sleep apnea or other sleep disturbance during his periods of active service. Following service, VA outpatient treatment records dated from January 2012 to November 2015 show intermittent treatment for symptoms associated with obstructive sleep apnea and variously diagnosed sleep disturbance. There is no indication in the treatment records that the diagnoses are etiologically related to the Veteran's periods of active service. Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's currently diagnosed obstructive sleep apnea is manifested as a result of a period of active service. In this regard, the service treatment records are silent as to a diagnosis of obstructive sleep apnea or any findings otherwise of sleep disturbance. The first medical evidence of record of obstructive sleep apnea was not until many years following discharge from active service. As competent evidence of record does not establish a nexus between the Veteran's service and the diagnosed sleep disorder, service connection must be denied. In view of the absence of in-service findings of a sleep disorder, and the lengthy period following service without treatment, there is no evidence of continuity of symptomatology, and this weighs against the Veteran's claim. The Board recognizes the Veteran's contention that he has obstructive sleep apnea as a result of active service. He has not provided sufficient statements to establish even an indication of an association between sleep apnea and his active service. The Board acknowledges that, to date, the Veteran has not been afforded a VA examination in regard to his claim of service connection for obstructive sleep apnea. In determining whether the duty to assist requires that a VA examination be provided or medical opinion obtained with respect to a claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, no examination is necessary in order to adjudicate the Veteran's claim of entitlement to service connection. Specifically, there is no indication, besides the Veteran's own unsupported contention that he the sleep apnea he is being treated for is related in any way to his active service. Nor is there evidence establishing a relevant inservice disease, injury or event. Simply stated, the Veteran's service treatment records (containing no competent medical evidence of a sleep disorder) and post-service treatment records (showing no complaints, symptoms, findings or diagnoses associated with a sleep disorder for many years, and no competent medical evidence linking the asserted sleep disorder to the Veteran's service) outweigh the Veteran's contention. Accordingly, the Veteran's claim of entitlement to service connection for obstructive sleep apnea must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for obstructive sleep apnea. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49. ORDER Service connection for obstructive sleep apnea is denied. REMAND Unfortunately, a remand is required in this case as to the issue of service connection for hypertension. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a) (West 2012); 38 C.F.R. § 3.159(c), (d) (2017). The Veteran asserts that he has hypertension that either began during active service or that existed prior to service and was aggravated beyond its natural progression during active service. As indicated above, the Veteran had three periods of active service, from August 1972 to July 1975, January 2003 to September 2003, and July 2004 to December 2005. In concluding that the Veteran's hypertension was not aggravated by service, the VA examiner in December 2015 indicated that the earliest report of high blood pressure occurred on February 25, 2001, which was between his first and second periods of active duty service, at which time blood pressure was said to be 140/80. The Board finds that this opinion is of limited probative value as there are multiple blood pressure readings of record prior to February 25, 2001, where blood pressure readings were elevated. In this regard, in August 1972, blood pressure was 136/80; in June 1987, it was 126/88; in November 1996, it was 140/88, and in August 1992, it was 142/90. As such, the Board finds that an additional medical examination is needed to determine the precise nature and etiology of the asserted hypertension. An opinion should be obtained as to whether the Veteran currently has hypertension, and if so, whether it is at least as likely as not that such was incurred in or aggravated by active service; if hypertension did not have its onset in service, whether it is undebatable (clearly and unmistakably) that the condition existed prior to the Veteran's active service; and whether clear and unmistakable evidence supported finding both that the hypertension existed prior to service and that it did not increase in severity during service other than due to the natural progression of the disorder. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall schedule the Veteran for a VA examination with an appropriate physician in order to determine the precise nature and etiology of his hypertension. The claims file and a copy of this remand must be reviewed by the examiner. All appropriate tests and studies shall be conducted. Following review of the entire claims file and examination of the Veteran, the examiner is requested to address each of the following: (a) Please clarify whether the Veteran has hypertension. (b) If the Veteran has hypertension, please opine whether it is clear and unmistakable (obvious, manifest, and undebatable) that such diagnosis existed prior to any period of active service. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing diagnosis WAS NOT aggravated (i.e., chronically worsened) during service or whether it is clear and unmistakable that any increase was due to the natural progress. (c) If the examiner renders unfavorable opinions with respect to remand paragraph (b), state whether it is at least as likely as not that the diagnosed hypertension had its onset in service, or is otherwise related to any period of active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for hypertension during any period of active service in the Veteran's claim file cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The AOJ will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (West 2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs