Citation Nr: 18143172 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 12-34 475 DATE: October 18, 2018 ORDER Service connection for hypertension is denied. Service connection for headaches is denied. Service connection for a sinus disorder is denied. A 50 percent rating for obstructive sleep apnea is granted, subject to the laws and regulations governing the aware of monetary benefits. FINDINGS OF FACTS 1. Medical evidence of record does not support a current diagnosis of hypertension. 2. The preponderance of the evidence is against finding that the Veteran’s headaches are related to his military service or his service connected PTSD. 3. Medical evidence of record does not support a diagnosis of sinus disability during the course of the appeal. 4. Treatment of the Veteran’s obstructive sleep apnea requires the use of a CPAP machine. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303. 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.309, 3.310. 3. The criteria for service connection for a sinus condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303. 4. The criteria for a 50 percent rating for obstructive sleep apnea have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.100, DC 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1992 and from March 2008 to March 2009. He also has a period of active duty for training between December 2007 and March 2008, and inactive duty for training thereafter. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106 (d); 38 C.F.R. § 3.6 (e). ACDUTRA, however is, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). In the context of Reserve or National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless “veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Id. Even for veterans who have achieved “veteran” status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the claimant has not achieved “veteran” status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. 1. Hypertension The Veteran contends that he was diagnosed and treated for hypertension by an Army physician while on active duty at Camp Beauregard, Louisiana. He explained that because of his treatment, his deployment was delayed until his blood pressured returned to normal. After 30 days, he was cleared to deploy with his unit. Service treatment records confirm the Veteran’s account of being diagnosed with hypertension in November 2008 and receiving medication for high blood pressure. Post-service treatment records note the Veteran’s in-service treatment for hypertension. In November 2010, the Veteran visited a private physician for back and leg pain. The Veteran’s blood pressure during the visit was normal at 130/80. In September 2015, the Veteran underwent hypertension screening, where his blood pressure was found to be normal. The Veteran was afforded a VA examination in October 2017. There, his blood pressure readings were 141/79, 143/88, and 126/86, with an average reading of 135/90. With the results, the examiner indicated that he was unable to find readings that meet VA criteria of two blood pressures on the same day for three different days. The examiner noted that there is sufficient documentation of elevated blood pressures and continued treatment for hypertension over the years beginning in February 2008, when the Veteran underwent an entrance examination for active duty in the National Guard. While the Veteran had clearly been diagnosed with hypertension in service, evidence suggests that he was subsequently treated. Since the date of his separation from service, the examiner found no evidence of chronic elevated blood pressure. Moreover, the examiner noted that the Veteran was no longer on blood pressure medication and his blood pressure is currently normal. After review of the record, the Board finds that service connection for hypertension is not warranted. The most probative evidence concluded that the Veteran did not currently meet the criteria to be diagnosed with hypertension. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. Here, the medical evidence fails to establish the presence of hypertension during the course of the appeal, and the claim is therefore denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 2. Headaches It is the Veteran’s contention that he developed headaches as a result of stress and anxiety from being in combat zones. Additionally, the pressure of being responsible for others in the combat zone reportedly contributed to his longterm anxiety. After his return from service, his headaches continued due to his PTSD. Despite medication, the Veteran has asserted that his headaches have worsened and have been occurring on a daily basis. At times, the severity of his headaches has incapacitated him. Service treatment records show that the Veteran reported having a headache in January 1992. However, the record also noted that the headache was caused by his sleeping position. No follow-up care was noted. There was no indication of chronic headaches in service. On his November 2007 report of medical history, the Veteran specifically denied having frequent/severe headaches or head injuries. The Board notes that while the Veteran reported having frequent headaches on his November 2011 report of medical history for the National Guard, that was a during period of INACDUTRA. Post active duty, at a VA examination in May 2009, the Veteran reported that date of onset of headaches was 2006 and that they had become chronic, occurring 1 to 2 times a week, lasting 30 minutes to several hours. He described occasional refractory headaches that may last a few days, which usually started in the shoulders, neck, or head. He also described intermittent facial headaches, associated with sinus problems. He reported experiencing an increased frequency of headaches while stationed in Iraq. At a March 2011 mental health evaluation for PTSD, the VA physician noted that when stressed, the Veteran experienced from physiological sensations such as jaw twitching, positive psychomotor movements, and headaches. The Veteran was afforded a VA examination in October 2017. There, the examiner found that the Veteran’s reported headaches were less likely related to his military service, explaining that the Veteran’s symptoms were only subjective, with no corresponding documented evaluations or treatment prior to or during his time in service. Objective examination showed normal results. The Veteran was evaluated in 2011 and 2013, but there was no record of continued complaints of headaches thereafter. There is no objective evidence of an ongoing chronic headache condition and that the Veteran takes no medication for headaches, or have reported any prostrating attacks. Given the lack of reporting, the examiner also found no nexus between the Veteran’s headaches and his service connected PTSD. In his review of the Veteran’s record, he did not find adequate evidence that the Veteran’s reported chronic headaches is related to or caused by his PTSD. The Board accepts that the Veteran has experienced headaches, and that the headaches were experienced during a period of service. For example, there was a report of a headache in January 1992, during active service. However, that headache was shown to have resulted from a bad sleeping position and had resolved in service. With regard to the secondary theory of entitlement, the probative medical evidence does not support a medical nexus between the Veteran’s headaches and his service connected PTSD. Thus, based on the foregoing, service connection for headaches is denied. 3. Sinus The Veteran asserts that he developed a sinus disorder in service. Service treatment records show that the Veteran marked ‘no’ when asked if he had sinusitis on his November 2011 report of medical history form when he served in the National Guard. However, that is during a period of INACDUTRA. There was no suggestion of a sinus condition during any period of active service. At a May 2009 VA examination, the Veteran told the examiner that during his 9 years of service, he worked as a guardsman. During his deployment in Iraq, he developed nasal congestion requiring him to blow his nose frequently, with some bloody streaking, and retroorbital headaches. He reported no injuries or trauma to the face. The examiner found no history of sinusitis, nasal allergy, osteomyelitis, or neoplasm. Upon examination, the examiner noted current rhinitis symptoms including nasal congestion and excess nasal mucous. CT scan results showed clear sinuses and regular septum with a small spur on the left side up high out of the airway. Pursuant to a March 2017 Board remand, the Veteran was afforded another VA examination in October 2017. There, the examiner indicated that while the Veteran had previously suffered from acute sinusitis in 2008, the condition had resolved. He noted that even though the Veteran may still complain of nasal congestion and runny nose, the examiner found that the Veteran did not have a chronic sinus disability. Given the physical examination and a prior CT scan result, the Board finds that the Veteran does not have a diagnosis of a chronic sinus condition. Without a showing of a current diagnosis, service connection for a sinus condition is not warranted. The existence of a current disorder is a required element of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran is certainly competent to report sinus problems during service, such as during his deployment in Iraq, he lacks the ability to diagnose a chronic sinus disability as such is a medically complex determination. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) Thus, service connection for a sinus disorder is denied. Increased Ratings The Veteran was first granted service connection for his sleep apnea in March 2018, effective March 29, 2009, at a noncompensable rating. In response to that rating decision, the Veteran filed a statement, expressing his disagreement, asserting a higher rating. The Veteran’s obstructive sleep apnea is rated under DC 6847, which rates sleep apnea syndromes. 38 C.F.R. § 4.100, DC 6847. Under DC 6847, the minimum noncompensable rating is warranted for asymptomatic sleep apnea but with documented sleep disorder breathing. A 30 percent rating is warranted for persistent day-time hypersomnolence. A 50 percent rating is warranted for sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. The maximum 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. Id. In support of his claim, the Veteran submitted a VA treatment note dating June 2009, showing that he was prescribed CPAP/BIPAP equipment for his sleep apnea. He was also instructed on the proper use of the machine. In May 2009, the Veteran’s VA examination noted the Veteran’s sleep apnea and his inability to sleep a full night, only getting 3 to 4 hours sleep each night. At an August 2015 Gulf War VA examination, the examiner noted that the Veteran continued use a CPAP machine. Based on this evidence, the Board finds that the Veteran’s obstructive sleep apnea currently meets the criteria for a 50 percent rating due to the necessity of a CPAP machine. He is not entitled to a higher rating of 100 percent because his sleep apnea is not manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or required tracheostomy. Thus, an increased rating for obstructive sleep apnea is granted at 50 percent. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel