Citation Nr: 18140886 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-19 095 DATE: ORDER Entitlement to service connection for sleep apnea, to include as due to depressive disorder, NOS, alcohol dependence remission is denied. Entitlement to service connection for hypertension, to include as due to depressive disorder NOS, alcohol dependence in remission is denied. Entitlement to service connection for erectile dysfunction, to include as due to depressive disorder NOS, alcohol dependence in remission is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has sleep apnea that had its onset in service or is otherwise related to any in-service disease, injury, or event. 2. The preponderance of the evidence does not demonstrate that the Veteran’s hypertension manifested within a year of his separation from active duty service, was incurred in, or is otherwise related to his military service, to include a service-connected disability. 3. The preponderance of the evidence is against finding that the Veteran has erectile dysfunction that had its onset in service or is otherwise related to any in-service disease, injury, or event. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to January 1976. In September 2015, the Veteran filed a properly executed VA Form 21-22a in favor of attorney J. S. Berry. The Board also notes that in a statement dated on May 23, 2016, the Veteran stated that he “will follow up but need more time. As I’m moving . . . and will present evidence with new lawyer there.” In May 24, 2016, prior to the date this case was certified to the Board, J. S. Berry withdrew his representation. An attorney may revoke a power of attorney so long as it does not adversely impact the Veteran’s interests. See 38 C.F.R. § 14.631. Based on the Veteran’s May 23, 2016 statement, the Board concludes that the Veteran had been informed of the withdrawal. Additionally, the evidence does not show, nor has the Veteran asserted, that J. S. Berry’s withdrawal of representation has adversely impacted his interests. No new VA Form 21-22 or 21-22a has been received. Accordingly, the Veteran is unrepresented. An April 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for irritable bowel syndrome (claimed as gastrointestinal condition; acid reflux; stomach condition with diarrhea). Therefore, as the issue has been granted in full, it is not before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Cardiovascular diseases, such as hypertension, are considered “chronic” and, therefore, will be presumed to have been incurred in service if manifested to a compensable degree of 10 percent or more within one year of a Veteran’s separation from service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element for certain chronic disabilities listed in 38 C.F.R § 3.309(a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for sleep apnea, to include as due to depressive disorder, NOS, alcohol dependence remission The Veteran contends that his sleep apnea is due to his active service or in the alternative, due to his depressive disorder and/or alcohol dependence in remission. Specifically, the Veteran stated that he has difficulty going to and staying asleep. He wakes up tired and sometimes when he wakes, he is unable to catch his breath. He was told that he snores. The Veteran’s service treatment records (STRs) do not document treatments, complaints, or diagnosis of sleep apnea or sleep issues. On his January 1975 Report of Medical History: Loss of Health Records examination, his December 1973 Report of Medical History: MC examination and his January 1976 Report of Medical History; Separation examination, neither the examiner nor the Veteran noted a sleep problem. From 2011, the Veteran was seen at multiple VA facilities. In April 2012, the Veteran reported nightmares. He also stated that his sleep was disturbed by leg pain, pain, and depression. However, the Veteran’s treating physicians did not diagnose sleep apnea. In November 2015, the Veteran submitted a statement from a private physician. The examiner stated that the Veteran’s insomnia disorder had been persistent since 2014. The examiner stated that the Veteran’s high level of control, high startle response, hypervigilence, depression constellation of severe, recurrent, agitated authority and control issues, and his inability to admit when he needs help, assuming it is not possible or likely possible, was a part of the cycle that adds and was related to anxiety/panic, depression constellation of sleep disturbance, guilt, shame, death thought, and feelings of loss of control over his reactions. The examiner further stated that it appeared as if all the Veteran’s disorders were discrete yet feed each other seamlessly and exacerbating each other. Based on the evidence of record, the Board concludes that the Veteran does not have a diagnosis for sleep apnea. As such, element one under Shedden and Wallin is not met. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Regarding the Veteran’s sleep disturbance, the Board notes that sleep disturbance is not a disability for VA purposes. A symptom alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Additionally, the evidence of record and the Veteran’s private examiner note that the Veteran’s sleep disturbance is due to his nonservice-connection disabilities. In this regard, the Board notes that service connection for depressive disorder and alcohol remission were denied in an unappealed July 2013 rating decision, and again in an unappealed July 2016 rating decision. As such, service connection is not warranted. The Board has considered the Veteran’s statements regarding the etiology of his sleep condition. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and nexus between the sleep condition and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a sleep apnea diagnosis by a medical professional and a nexus relating the sleep apnea to his active service. The Board acknowledges that there is no VA opinion regarding the Veteran’s theories of entitlement. However, as there is no credible lay evidence or competent medical evidence indicating that the Veteran has sleep apnea that was present in service or may be associated with his active service, a medical nexus opinion is not warranted, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (a conclusory lay nexus statement is not sufficient to trigger VA’s duty to provide an examination). The Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea, sleep disturbance, or sleep issues on a direct and/or secondary basis. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for hypertension, to include as due to depressive disorder NOS, alcohol dependence in remission For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, DC 7101. Under this code, service connection for pre-hypertension is not warranted when an examiner diagnoses pre-hypertension based on readings not recognized in DC 7101. See VA Adjudication Procedures Manual, M21-MR, III.iv.4.E.20.33. Analysis The Veteran contends that his hypertension is due to his active service or in the alternative, due to his depressive disorder and/or alcohol dependence in remission. The Veteran has a current hypertension diagnosis. As such, element one under Shedden and Wallin is met. Regarding secondary service connection, the Veteran is not service connected for depressive disorder and/or alcohol dependence. As such, element two under Wallin is not met. Therefore, service connection on a secondary basis is not warranted. The Veteran’s STRs do not document treatments, complaints, or diagnosis of hypertension. During his December 1973 Report of Medical History: MC examination, the Veteran noted that he had high or low blood pressure. However, the examiner noted that the Veteran’s vascular system was normal. The Veteran’s blood pressure reading was 120/70. On his January 1975 Report of Medical History: Loss of Health Records examination, the Veteran noted that he did not know if he had high or low pressure. However, the examiner noted that the Veteran’s vascular system was normal. The Veteran blood pressure readings were 126/78 and 120/70. During his January 1976 Report of Medical History; Separation examination, the Veteran noted that he had high or low blood pressure. The examiners noted that the Veteran’s vascular system was normal. The Veteran’s blood pressure reading was 120/80. From 2011, the Veteran was seen at multiple VA facilities. In September 2012, the Veteran was seen at Internal Medicine PPG. It was the Veteran’s first visit to that particular VAMC; however, he had been in the VAMC system three in the past four years. The examiner noted that for one year, the Veteran had a diagnosis of hypertension. Based on the evidence of record, the Board finds that service connection for hypertension on a direct basis is not warranted. The Veteran’s STRs do not document complaints or treatments for hypertension or elevated blood pressure. The Board notes that on his loss of health records examination and his separation examination, the Veteran noted that he had high and low blood pressure. However, as noted above, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater. 38 C.F.R. § 4.104, DC 7101. In this case, the Veteran’s diastolic blood pressure was not predominantly 90 or greater. It was 126/78 and 120/70 in 1975, 120/70 in 1973, and 120/80 in 1976. Therefore, the Board finds that the first medical evidence of hypertension was in 2012, i.e., over 36 years after his discharge from active service. The fact that there were no records of any complaints or treatment involving the Veteran’s hypertension for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). Therefore, elements two and three under Shedden are not met. Regarding presumptive service connection, the Board finds that service connection for hypertension on a presumptive basis is not warranted as the record does not show evidence of hypertension within one year of the Veteran’s separation from active duty. As noted above, the first competent evidence suggestive of hypertension was in 2012. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 U.S.C. §§ 1112, 1137 and 38 C.F.R. §§ 3.307, 3.309 cannot be applied. The Board has considered the Veteran’s statements regarding the etiology of his hypertension. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the hypertension and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran’s current hypertension to his active service. The Board acknowledges that there is no VA opinion regarding the Veteran’s theories of entitlement. However, as there is no credible lay evidence or competent medical evidence indicating that the Veteran’s hypertension was present in service or may be associated with his active service, a medical nexus opinion is not warranted, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (a conclusory lay nexus statement is not sufficient to trigger VA’s duty to provide an examination). In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for hypertension. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for erectile dysfunction, to include as due to depressive disorder NOS, alcohol dependence in remission The Veteran contends that his erectile is due to his active service or in the alternative, due to his depressive disorder and/or alcohol dependence in remission. The Veteran’s STRs do not document treatments, complaints, or diagnosis of erectile dysfunction. On his January 1975 Report of Medical History: Loss of Health Records examination, his December 1973 Report of Medical History: MC examination and his January 1976 Report of Medical History; Separation examination, neither the examiner nor the Veteran noted erectile dysfunction. From 2011, the Veteran was seen at multiple VA facilities and evaluated by private physicians. The Veteran’s treating physicians have not diagnosed erectile dysfunction. Based on the evidence of record, the Board concludes that the Veteran does not have a diagnosis for erectile dysfunction. As such, element one under Shedden and Wallin is not met. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Therefore, the preponderance of the evidence is against the claim for service connection for erectile dysfunction on a direct and/or secondary basis. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel