Citation Nr: 18142074 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 15-32 640 DATE: October 15, 2018 ORDER 1. Entitlement to service connection for obstructive sleep apnea is denied. 2. Entitlement to service connection for hypertension is denied. 3. Entitlement to service connection for a bilateral knee disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not demonstrate that the Veteran’s sleep apnea began in or is etiologically related to his active duty service. 2. The Veteran’s hypertension was not diagnosed until many years after his active duty service, and is not etiologically related to such service. 3. The preponderance of the evidence shows that bilateral degenerative joint disease was not present in service or until many years thereafter, it is not related to service or to an incident during service. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 112, 1113, 1116, 1117, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309, 3.317. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 112, 1113, 1116, 1117, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309, 3.317. 3. The criteria for service connection for bilateral knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 112, 1113, 1116, 1117, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309, 3.317 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to April 1992. Service Connection Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). Service connection can also be established on the basis of continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (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.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system to include tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for obstructive sleep apnea. The Veteran asserts that his currently diagnosed sleep apnea is due to his active service. The Veteran was diagnosed with obstructive sleep apnea following a sleep study in May 2006 and therefore meets the current disability requirement. However, the Veteran’s service treatment records are negative for complaints or symptoms of obstructive sleep apnea or any other breathing or sleep disorders. In August 2016, the Veteran’s private treating physician opined that after reviewing the veteran’s medical records, it was his professional opinion that the veteran likely developed sleep apnea early during service, noting a “long history of symptoms prior to being discharged from service.” See physician letter received August 19, 2016. While the Board acknowledges the physician’s treating relationship with the Veteran, the opinion does not specify any of the symptoms that were supposedly reported or exhibited by the patient prior to his discharge from active service. Furthermore, the private physician did not indicate that he reviewed any of the Veteran’s service treatment records. As noted above, service treatment records do not contain any reported symptoms associated with sleep apnea. Accordingly, the Board finds this opinion to be of little probative weight. The Veteran’s former spouse also submitted a statement in February 2014 stating that she was married to the Veteran from 1971 to1988 and that during that time she observed the veteran’s snoring getting worse and that he would, at times, have shortness of breath. In August 2015, a VA physician reviewed the claims folder and opined that the Veteran’s sleep apnea was of post-service onset and etiologically related to the Veteran’s obesity. See August 2015 Supplemental VA Examination report. The examiner noted the lack of any complaints, evaluations or diagnoses of sleep apnea during service. The examiner also discussed the 2014s statement by the Veteran’s former spouse, noting that her statements did not provide any significant information regarding the etiology of the Veteran’s sleep apnea. The examiner noted that snoring without obstructive sleep apnea is well known to be commonplace in the adult male population and that the former’s spouse’s observations regarding shortness of breath was insufficient to establish the presence of sleep apnea. Instead, the examiner opined that the sleep apnea was likely caused by the Veteran’s obesity. While the Veteran’s representative argued at the hearing that the Veteran was not obese, post service records show body mass index readings above 30, indicating obesity. The Board finds the August 2015 medical opinion to be highly probative. At the August 2016 hearing, the Veteran testified that prior to his diagnosis with sleep apnea, his symptoms consisted of snoring. The Board acknowledges the Veteran’s statements, including his allegation that this condition is related to service. However, while the Veteran is competent to report his symptoms of a disability, he is not competent to opine on matters requiring medical knowledge, such as the etiology of his sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Bostain v. West, 11 Vet. App. 124 (1998), Charles v. Principi, 16 Vet. App. 370 (2002). Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for sleep apnea is not warranted. 2. Entitlement to service connection for hypertension The Veteran asserts that he has a diagnosis of hypertension that is etiologically related to service. Evidence of record shows that the Veteran is currently diagnosed with hypertension and therefore meets the first prong of service connection test outlined above. A review of the Veteran’s service treatment records reveals that they do not contain a diagnosis of hypertension on entry or throughout service. However, the Veteran’s service treatment records do show several elevated blood pressure readings and the Veteran did report high blood pressure in the January 1992 Report of Medical History. Nevertheless, apart from approximately four instances highlighted by the Veteran’s representative, service treatment records contain a myriad of normal blood pressure readings throughout the Veterans more than two decades of active service. Most importantly, a cardiac consult in April 1991, close to the Veteran’s discharge, found that any cardiac abnormalities exhibited by the Veteran were the result of his excellent aerobic conditioning and that the Veteran did not have any significant cardiovascular disease, providing very probative evidence against this claim. This is key evidence. The Veteran’s primary care provider submitted a disability questionnaire in October 2014 indicating that the Veteran’s hypertension was diagnosed in 2003 and is now under control with medication. The primary care provider did not opine as to the etiology of the disease. The Veteran was afforded a VA Examination in December 2013. The examiner found that the Veteran was diagnosed with hypertension in 1985 and medical records showed “high blood pressure throughout active duty.” The examiner opined that the Veteran’s condition was at least as likely as not incurred in, or caused by, the claimed in service injury, event or illness. The Board finds the examiner’s rationale to be inconsistent with the available evidence of record. First, the examiner does not provide any explanation for finding that the veteran’s hypertension was diagnosed in 1985. Service records do not show elevated blood pressure readings during that year, nor are any alleged by the Veteran or his representative. The examiner’s vague finding of high blood pressure throughout service is inconsistent with available service records which show few isolated elevated readings prior to his discharge. Accordingly, a supplemental opinion was obtained in August 2015. The examiner opined that the Veteran’s hypertension had an onset in 2003 and is unrelated to service. The examiner noted that most of the Veteran’s blood pressure readings were normotensive with elevated blood pressure readings few in number. The examiner opined that the it is commonplace for normal non-hypertensive adults to have isolated elevated blood pressure readings in hypertensive circumstances like fear, anxiety, stress, pain, fever or even too much coffee. The Board finds the August 2015 examiner’s opinion to be highly persuasive. The medical opinion was given by a physician based upon a complete review of the record and supported by a detailed rationale, and is therefore adequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board acknowledges the argument made by the Veteran’s representative that the August 2015 supplemental opinion was improperly obtained in order to obtain negative evidence, but finds that the argument lacks merit. The regional office provided sufficient rationale for requesting a supplemental opinion to confirm the etiology of the disease. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for hypertension is not warranted. 3. Entitlement to service connection for bilateral knee disability The Veteran asserts that he has a diagnosis of bilateral knee disability that is etiologically related to service. The Veteran was diagnosed with bilateral degenerative joint disease in 2011 and underwent surgery on the right knee in 2015. Accordingly, the Veteran meets the current diagnosis requirement. The Veteran’s service treatment records do not contain any diagnoses of degenerative joint disease in either knee. The records do contain an emergency room note from October 1970 with the Veteran reporting a right knee injury sustained during martial arts training. A contusion with minimal swelling was noted, however subsequent evaluations and treatment records do not indicate any continuing complaints or treatment. Accordingly, this appears to be an acute and transitory even with no residuals noted in subsequent evaluations. The record also contains complaints of his knees buckling in early 1989, but despite considerable testing, the Veteran was not diagnosed with any knee condition. As arthritis of either knee joint was not shown in service or within a year from service discharge, the Veteran is not entitled to a grant of service connection pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309(a), for chronic disease present to a compensable degree within the first post-service year. Accordingly, competent evidence linking the current right and left disabilities to service is needed to substantiate the claims. The Veteran was afforded a bilateral knee VA examination in December 2013. The examiner opined that it was at least as likely as not that the claimed condition was incurred in or caused by an in-service injury, event, or illness. The examiner listed the onset of the Veteran’s bilateral degenerative joint disease as 1975. In the rationale for his opinion, the examiner noted that he had no history of knee problem upon entry in 1968 but that “due to 23 years of physical training and extensive activity of the lower extremities, arthritis is common to develop.” See December 2013 C & P Exam. A supplemental opinion was requested and in August 2015, the examiner opined that the December 2013 opinions are not supported by objective service treatment records. The examiner noted that he is an expert in service-induced orthopedic disabilities and that in his professional opinion there is no nexus between the Veteran’s currently diagnosed bilateral knee degenerative joint disease and service. In support of his opinion, the examiner noted the lack of reports of pain or injury to the knees throughout the Veteran’s service records apart from an isolated transitory incident in 1970. The Board finds the opinion of the VA examiner in August 2015 to be highly persuasive in finding that the evidence does not support a conclusion that the Veteran incurred the current bilateral knee disabilities as a result of service. The examiner’s findings were based on a review of the evidence, including the service treatment records and examination report, which did not substantiate a finding that the Veteran had a chronic knee disorder in service. The examiner considered the complete record, and provided an explanation as to why the evidence does not support a finding that his current right and left knee disabilities were due to service. Additionally, the VA examiner provided reasoning that is supported by the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the opinion is of significant probative value. The Board has considered the Veterans contentions that his knee problems date back to service. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot self-diagnose due to the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current right or left knee disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (finding that “although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for bilateral knee disorder is not warranted. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel