Citation Nr: 1806133 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-44 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea. (The issue of whether an overpayment of compensation was properly created based on the concurrent payment of VA Dependent Educational Assistance (DEA) benefits and benefits received for a dependent child is addressed in a separate decision). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1982 to July 1995 and from March 1996 to September 2003. The matter of entitlement to service connection for hypertension comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board previously remanded this matter in April 2014, February 2015, and July 2016. The Veteran testified at a videoconference hearing for the issue of entitlement to service connection for hypertension before the undersigned Veterans Law Judge in February 2014. The Veteran's wife was present as a witness. A transcript of the hearing is of record. FINDING OF FACT The most probative competent evidence of record shows that the Veteran's hypertension is secondary to his service-connected sleep apnea. CONCLUSION OF LAW The criteria for the establishment of service connection for hypertension on a secondary basis are met. 38 U.S.C. §§ 1101, 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection 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; 38 C.F.R. §§ 3.303, 3.304. 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, such as cardiovascular-renal disease, 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 (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). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310 (b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Current hypertension has been established. The Veteran has asserted that his hypertension manifested as a result of a service-connected disability, to specifically include his service-connected sleep apnea. The Veteran was afforded VA examinations in July 2014 and October 2016, and a VA addendum opinion for the July 2014 VA examination was provided in May 2015. In the Board's February 2015 and July 2016 remands, the July 2014 VA examination and May 2015 VA addendum were determined inadequate. In June 2012, the Veteran requested a review of his medical records from a private neurology expert. The private neurologist submitted medical literature connecting hypertension to sleep apnea. Further, in a June 2015 letter the Veteran's private physician stated that the Veteran had a history of hypertension and was taking several medications for this condition. It was noted that the Veteran also had a history of obstructive sleep apnea and the private physician opined that this was likely contributing to the Veteran's underlying hypertension. In October 2016, the Veteran was afforded another VA examination for his claim. The examiner opined that the Veteran's hypertension was at least as likely as not aggravated beyond its natural progression by his service-connected sleep apnea. The examiner reasoned that the obstructive sleep apnea and CPAP usage diagnosis occurred around 2008. His blood pressure required more medication and changes as a result of worsening obstructive sleep apnea from 2006-2010. As such, resolving doubt in the Veteran's favor, service connection for hypertension, secondary to service-connected sleep apnea is warranted. See 38 U.S.C. §§ 1154 (b), 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected sleep apnea, is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs