Citation Nr: 1804635 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-20 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for sleep apnea, to include secondary to service-connected ischemic heart disease (IHD). 2. Entitlement to service connection for hypertension, to include secondary to service-connected IHD. 3. Entitlement to service connection for chronic kidney disease, to include secondary to service-connected IHD. ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In January 2016, the Board remanded the current issues for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions 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)). The issue of entitlement to service connection for obstructive sleep apnea, to include secondary to service-connected IHD, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACTS 1. 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 IHD. 2. The most probative evidence of record is against finding that the Veteran's chronic kidney disease manifested during service, manifested within a year of service, is otherwise related to service, or was caused or aggravated by his service-connected IHD. 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; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The requirements for establishing service connection for chronic kidney disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Direct Service Connection The Board first addresses the Veteran's claim of entitlement to service connection hypertension and chronic kidney disease on a direct basis. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, such as cardiovascular-renal disease. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. §§ 1101(3) (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service and there is evidence that the claimant's symptoms have continued after discharge. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112(a)(1), 1137 (2012); 38 C.F.R. § 3.307 (a)(3) (2017). VA treatment records confirm that the Veteran has been diagnosed with hypertension and chronic kidney disease. As such, the question becomes whether hypertension or chronic renal disease is related to service. Unfortunately, following review of the record, the Board finds that the probative evidence weighs against a relationship, such that service connection for hypertension and chronic renal disease are not warranted. A. Hypertension Service treatment records documented the following blood pressure readings: 130/76 in February 1968, 130/80 in August 1971, and 126/88 in July 1975; none of these meet VA criteria for a diagnosis of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2017). In August 2016, the Veteran was afforded a VA hypertension examination. There, the examiner documented the Veteran's reports of in-service "borderline HTN" and diastolic values "in the mid-80s to the mid-90s." But, the examiner found that the Veteran was not diagnosed with or treated for hypertension while in service. Following separation from service, the Veteran was first treated for hypertension in the late 1970s and began consistently taking hypertension medication beginning around 1989 or 1990. The examiner concluded that it was less likely than not that the Veteran's hypertension was caused or related to his military active service. The examiner explained that the onset of the Veteran's symptoms began when he was in his late 20's, which was typical of most hypertension cases, where the onset of symptoms begin between the ages of 20 and 60 years old. Further, the examiner noted that the Veteran did not present symptoms of secondary hypertension. The 2016 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 question 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 addition, as the record contains a diagnosis of hypertension and chronic kidney disease, it may be considered a chronic disease pursuant to 38 C.F.R. § 3.303(b) as it falls under the umbrella of cardiovascular-renal disease. However, the application of the chronicity presumption is also not warranted in the instant case as there is no showing of hypertensive heart disease manifesting to a degree of 10 percent or more within the first post-service year or a continuity of symptoms since service. 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. Chronic Kidney Disease Next, the Board addresses the Veteran's claim for service connection for chronic kidney disease on a direct basis. December 2006 private treatment records from Scripps Clinic documented the Veteran's first reports of kidney dysfunction. The treatment records documented creatinine levels between 1.2 and 1.4 from 1997 to 2006. In December 2006, the Veteran's creatinine levels were between 1.4 and 1.5. The clinician noted an impression of "slight worsening of chronic kidney disease." January 2006 treatment records reveal "no evidence of renal artery stenosis." In August 2016, the Veteran was afforded a VA renal examination. The VA examiner noted that the onset of the Veteran's kidney problems first began sometime between 1989 and 1990. The examiner stated that normal creatinine levels typically range between 0.5 and 1.2. The Veteran's creatinine level were and had been high, ranging between 1.5 and 1.9. Despite the Veteran's current renal condition and history of kidney disease, the examiner opined that the Veteran's chronic kidney disease was less likely than not incurred in or caused by service, as there was no evidence supportive of a finding that his creatinine levels were elevated during his active service. The 2016 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. Stef, 21 Vet. App. at 124. Moreover, there is no competent opinion of record that contradicts it, as the only other evidence that speaks to the question at issue here is the Veteran's lay assertion that his chronic kidney disease 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 chronic kidney disease, because such questions are not within the realm of knowledge of a layperson. See Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. Accordingly, the Veteran's opinions as to the diagnosis and etiology of his chronic kidney disease 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 addition, as the record contains a diagnosis of hypertension and chronic kidney disease, it may be considered a chronic disease pursuant to 38 C.F.R. § 3.303(b) as it falls under the umbrella of cardiovascular-renal disease. However, the application of the chronicity presumption is also not warranted in the instant case as there is no showing of chronic kidney disease manifesting to a degree of 10 percent or more within the first post-service year or a continuity of symptoms since service. In short, the preponderance of the probative evidence indicates that the Veteran does not have chronic kidney disease 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. II. Secondary Service Connection A. Hypertension The Board now turns to the Veteran's assertion that his hypertension was caused or aggravated by his service-connected IHD. 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 August 2016 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 coronary artery disease neither directly nor indirectly causes renal artery stenosis. Instead, the opposite relationship is true: "it is more likely that HTN will aggravate CAD." 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 medical evidence that opposes the opinion of the VA examiner is an August 2014 private disability benefits questionnaire (DBQ) prepared by Dr. D.T. The DBQ documented diagnoses of coronary artery disease and hypertensive heart disease. Also, the DBQ noted that obstructive sleep apnea "pertains to" the heart conditions. Dr. D.T. did not support this notation with a rationale or explanation. Also, the DBQ does not specify which heart condition caused or aggravated the Veteran's hypertension. Accordingly, the August 2014 provides no probative value. See id. Thus, the preponderance of the probative evidence supports a finding that service connection for hypertension is also not warranted on a secondary basis. B. Chronic Kidney Disease Lastly, the Board turns to the Veteran's assertion that his chronic kidney disease was caused or aggravated by his service-connected IHD. 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 August 2016 VA examiner, who concluded that the Veteran's chronic kidney disease 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 VA examiner explained that "[w]hile peripheral vascular disease, including renal artery stenosis, may be associated with generalized atherosclerosis which could include peripheral artery disease (PAD) and cardiovascular disease . . . CAD itself, neither directly nor indirectly, will cause kidney injury . . . or chronic kidney disease . . . ." The only medical evidence that opposes the opinion of the VA examiner is the August 2014 DBQ prepared by Dr. D.T. The DBQ noted that chronic kidney "pertains to" the listed heart conditions. As found above, Dr. D.T. neither supported this notation with a rational or explanation. Also, the DBQ does not specify which heart condition caused or aggravated the Veteran's hypertension. Therefore, the August 2014 DBQ provides limited probative value. Stefl, 21 Vet. App. at 124. Thus, the preponderance of the probative evidence indicates that service connection for chronic kidney disease is also not warranted on a secondary basis. ORDER Service connection for hypertension is denied. Service connection chronic kidney disease is denied. REMAND While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's service connection claim. Following the January 2016 remand, the Veteran was afforded a VA examination for obstructive sleep apnea in August 2016. The examiner did not observe the Veteran presenting any signs or symptoms of obstructive sleep apnea. Nonetheless, the examiner noted that the Veteran underwent a sleep study in May 2004 as a result of which he was diagnosed with obstructive sleep apnea. During the examination, the Veteran reported a feeling of "always being tired," a history of snoring, and "jerking around at night." The examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea was incurred in or was caused by service. In support, the examiner stated that "Mr. Fenton's OSA was first diagnosed >25 years post-active duty. There is no contention or evidence that his symptoms were present during his active duty nor w/in 1 year post-separation." The August 2016 VA examination report is inadequate. The VA examiner inappropriately relied on the absence of in-service reports of sleep disturbances to support his opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Further, the examiner's statement that "[t]here is no contention or evidence that his symptoms were present during his active duty nor w/in 1 year post-separation" is contrary to the record. During the examination, the Veteran reported a history of snoring and "always feeling tired." In addition, service treatment records demonstrated the Veteran's body mass index was 29 at induction, 32.6 in February 1973, and 29.8 at separation. The body mass index values show that the Veteran fell within the obese range during service and remained slightly below the obese range at the time of separation. As obesity may increase the risk of sleep apnea, the examiner erred in omitting a discussion on this relevant evidence. See Centers for Disease Control and Prevention, Adult Obesity Causes & Consequences, (last updated Aug. 29, 2017) https://www.cdc.gov/obesity/adult/causes.html. As such, the examination opinion is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461(1993) (holding that an opinion must be based upon an accurate factual premise). Accordingly, an addendum medical opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Update the file with any VA treatment records relevant to the Veteran's claim. If any requested records are unavailable, the Veteran should be notified of such. 2. Transfer the Veteran's claims file to an appropriate medical professional, if possible to someone other than the August 2016 VA examiner, to ascertain the nature and etiology of his sleep apnea. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a) Please identify by medical diagnosis the Veteran's sleep conditions, if any. (b) For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran's condition began in service or is otherwise related to service? (c) If not directly related to service on the basis of question (b), is it at least as likely as not that the obstructive sleep apnea was caused by a service-connected disability, to include the Veteran's service-connected IHD? Please explain why or why not. (d) If not caused by a service-connected disability, is it at least as likely as not that the obstructive sleep apnea condition has been worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by a service-connected disability, to include the Veteran's service-connected residuals of IHD? Please explain why or why not. (e) If the examiner finds that the obstructive sleep apnea has been worsened beyond normal progression (aggravated) by a service-connected disability, please describe the degree in aggravation beyond the baseline level of the obstructive sleep apnea that is attributed to the service-connected disability. In providing this opinion, the examiner is to consider the Veteran's competent lay statements regarding excessive daytime sleepiness, history of snoring, and "jerking around at night." The examiner's attention is also directed to February 1968, August 1971, February 1973, and July 1975 service treatment records showing weight gain. The examiner should describe the nature and extent of the Veteran's sleep condition and symptoms. To the extent possible, the examiner should distinguish symptoms due to other service-connected disabilities. If this is not possible, the examiner should identify all symptoms that overlap. A complete rationale for the opinions rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. The examiner is advised that the Veteran is competent to report symptoms he observed during and after service and that his reports must be taken into account in formulating the requested opinions. 3. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. §§ 5109B, 7112 (2012). ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs