Citation Nr: 18143375 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-08 390 DATE: October 19, 2018 ORDER Entitlement to service connection for osteoporosis is denied. Entitlement to service connection for acid reflux is denied. Entitlement to service connection for a thyroid disability is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s osteoporosis was not incurred during, and is not otherwise related to, the Veteran’s period of active service. 2. The Veteran’s acid reflux or gastrointestinal reflux disease was not incurred during, and is not otherwise related to, the Veteran’s period of active service. 3. The Veteran’s thyroid disability was not incurred during, and is not otherwise related to, the Veteran’s period of active service. 4. Symptoms of the Veteran’s hypothyroidism have not been continuous since separation from service, and did not manifest to a compensable degree in the year following separation from service. 5. The Veteran’s diabetes mellitus was not incurred during, and is not otherwise related to, the Veteran’s period of active service. 6. Symptoms of the Veteran’s diabetes mellitus have not been continuous since separation from service, and did not manifest to a compensable degree in the year following separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoporosis have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for acid reflux have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for a thyroid disorder, to include hypothyroidism, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1969 to January 1993. Service Connection, Generally Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2017). Presumptive service connection can be established based upon continuity of symptomatology for those chronic diseases set forth in 38 C.F.R. § 3.309(a). 38 C.F.R. §§ 3.307, 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record. A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded. Entitlement to service connection for Osteoporosis In September 2012, the Veteran filed a claim for service connection for osteoporosis. The Veteran stated that the condition began in February 2008. He stated that he takes calcium supplements to treat the condition and that he has undergone bone density testing. The Veteran’s private treatment records indicate that his physician reported suspect osteoporosis in February 2008 and testing was ordered. The Veteran is competent to report that he been informed by his physician that he has osteoporosis. See Jandreau, 492 F.3d at 1376-77. Treatment records from the Veteran’s primary care physician confirm that the Veteran is treating with calcium carbonate tablets twice per day. While the Veteran has a diagnosis of osteoporosis, none of the competent evidence of record provides any support for a relationship between the Veteran’s osteoporosis and his period of active service. The Veteran’s service treatment records do not report any complaints related to decreased bone strength and do not report a diagnosis of osteoporosis. The Veteran’s separation examination in November 1992 is silent with regard to any findings of osteoporosis. The Veteran also denied a history of broken bones or bone, joint, or other deformity on his Report of Medical History at separation from active service. Certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Osteoporosis is not such a chronic disease. The Veteran has also not alleged that osteoporosis had onset during service, or manifested to a compensable degree within a year of separation from service. To the extent that the Veteran has reported that there is a connection between his current diagnosis of osteoporosis and his period of active service, the Board finds that the Veteran is not competent to provide an opinion on such a complex medical question. See Jandreau, 492 F.3d at 1376-77. The Board notes that the Veteran (and his representative) have not provided an explanation of why he believes his osteoporosis is related to his period of service. The Veteran has described symptoms of the condition and reported its onset after his separation from service; however, he has not provided an explanation for why he contends the disease is related to his period of active service, or how it could be related to any injury or disease incurred during his period of active service. Unfortunately, no other evidence of a relationship between the Veteran’s osteoporosis and his period of service is of record. As none of the competent evidence of record indicates that the Veteran’s osteoporosis either began during, or is otherwise, even potentially, due to his period of service, the Veteran’s claim for service connection for osteoporosis must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of- the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b) (2012); see also Gilbert, 1 Vet. App. at 55 (1990). Entitlement to service connection for Acid Reflux The Veteran also filed a claim for service connection for “acid reflux” or gastrointestinal reflux disease (GERD) in September 2012. The Veteran stated that the condition began in January 2003. He reported that he is constantly burping, suffering from heartburn and hoarseness. He stated that he was taking medication to treat the condition once per day. The Veteran’s private treatment records from the Sleep Disorders Center indicate that the Veteran was diagnosed with GERD at least as early as November 2002. While the Veteran has a diagnosis of GERD, none of the competent evidence of record provides any support for a relationship between the Veteran’s GERD and his period of active service. The Veteran’s service treatment records are silent with regard to complaints related to acid reflux or GERD. The Veteran’s separation examination in November 1992 does not provide a diagnosis of GERD. The Board notes that the evidence indicates that findings from the Veteran’s gastrointestinal examination resulted in an additional gastrointestinal consult in December 1992 due to a positive guaiac finding on the rectal examination at separation. Neither examination indicated a diagnosis or symptoms of GERD. Certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The list of those diseases does not include GERD. Additionally, the Veteran has not alleged that GERD or acid reflux had onset during service, or manifested to a compensable degree within a year of separation from service. Rather, in the Veteran’s application for service connection, he reported that the disability began in January 2003. To the extent that the Veteran has reported that there is a connection between his current diagnosis of GERD and his period of active service, the Board finds that the Veteran is not competent to provide an opinion on such a complex medical question. See Jandreau, 492 F.3d at 1376-77. The Board notes that the Veteran (and his representative) have not provided an explanation of why he believes his GERD is related to his period of service. The Veteran has described symptoms of the condition and reported its onset after his separation from service; however, he has not provided an explanation for why he contends the disease is related to his period of active service, or how it could be related to any injury or disease incurred during his period of active service. Unfortunately, no other evidence of a relationship between the Veteran’s GERD and his period of service is of record. As none of the competent evidence of record indicates that the Veteran’s GERD or acid reflux either began during, or is otherwise, even potentially, due to his period of service, the Veteran’s claim for service connection for acid reflux must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of- the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b) (2012); see also Gilbert, 1 Vet. App. at 55 (1990). Entitlement to service connection for a thyroid disability The Veteran also filed a claim for service connection for “a thyroid disability” in September 2012. The Veteran stated that the condition began in March 2010. He reported that he has abnormal blood tests and that he takes Synthroid to treat his disability. The Veteran’s private treatment records from January 2012 note that the Veteran has been diagnosed with hypothyroidism and was prescribed Synthroid. While the Veteran has a diagnosis of hypothyroidism, none of the competent evidence of record provides any support for a relationship between the Veteran’s thyroid disability and his period of active service. The Veteran’s service treatment records are silent with regard to complaints related to a thyroid disability. The Veteran’s separation examination in November 1992 does not provide a diagnosis of hypothyroidism or any thyroid disorder. The Veteran denied a history of any thyroid disease in Dental History Reports in December 1990 and November 1992. The Veteran also denied “thyroid trouble” in his Report of Medical History prior to separation from service in November 1992. The Board notes that endocrinopathies, such as hypothyroidism, are chronic disabilities which are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from qualifying service. See 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. § 3.309 (a) (2017). Unfortunately, none of the evidence of record indicates that the Veteran’s thyroid disability had onset within a year of the Veteran’s separation from active service. The Veteran has not alleged that his thyroid disability manifested to a compensable degree within a year of separation from service and alleged onset of his thyroid disability in March 2010 in his application for service connection. Additionally, the Veteran’s private treatment records include a sleep disorders evaluation in November 2002 that reports in a review of systems that the Veteran has no thyroidal disease or symptoms. To the extent that the Veteran has reported that there is a connection between his current diagnosis of a thyroid disability and his period of active service, the Board finds that the Veteran is not competent to provide an opinion on such a complex medical question. See Jandreau, 492 F.3d at 1376-77. The Board notes that the Veteran (and his representative) have not provided an explanation of why he believes his thyroid disability is related to his period of service. The Veteran has described symptoms of the condition and reported its onset in 2010 many years after his separation from service; however, he has not provided an explanation for why he contends his thyroid disability is related to his period of active service, or how it could be related to any injury or disease incurred during his period of active service. Unfortunately, no other evidence of a relationship between the Veteran’s thyroid disability and his period of service is of record. As none of the competent evidence of record indicates that the Veteran’s thyroid disability, to include hypothyroidism, either began during, or is otherwise, even potentially, due to his period of service, the Veteran’s claim for service connection for a thyroid disability must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of- the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b) (2012); see also Gilbert, 1 Vet. App. at 55 (1990). Entitlement to service connection for diabetes The Veteran also filed a claim for service connection for diabetes in September 2012. The Veteran stated that the condition began in May 2007. He reported symptoms of increased thirst, tiredness, and blurred vision. The Veteran’s private treatment records from September 2012 state that the Veteran has had a high normal A1c level since 2007 and that he was diagnosed with diabetes in 2010. While the Veteran has a diagnosis of diabetes, none of the competent evidence of record provides any support for a relationship between the Veteran’s diabetes mellitus and his period of active service. The Veteran’s service treatment records are silent with regard to complaints related to diabetes or laboratory findings of increased glucose or A1c levels. The Veteran’s separation examination in November 1992 does not provide a diagnosis of diabetes and the Veteran denied a history of diabetes in his Report of Medical History prior to separation from service in November 1992. The Board notes that diabetes mellitus is a chronic disability, which would be presumed to have been incurred in service if it manifested to a compensable degree within one year of separation from qualifying service. See 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. § 3.309 (a) (2017). Unfortunately, none of the evidence of record indicates that the Veteran’s diabetes had onset during service, or within a year of the Veteran’s separation from active service. Moreover, the Veteran has not alleged that his diabetes manifested to a compensable degree during service or within a year of separation from service. In his application for service connection, the Veteran alleged onset of his diabetes in May 2007, over a decade after separation from service. Further, the Veteran’s private treatment records from September 2012 state that the Veteran merely had high normal A1c levels since 2007 and that he was not diagnosed with diabetes until 2010. None of the competent evidence of record indicates that the Veteran’s diabetes manifested to a compensable degree within a year of his separation from service; accordingly, service connection on a presumptive basis for a chronic disability is not warranted. See 38 C.F.R. §§ 3.307, 3.309 (2017). To the extent that the Veteran has reports that there is a connection between his current diagnosis of diabetes mellitus and his period of active service, the Board finds that the Veteran is not competent to provide an opinion on such a complex medical question. See Jandreau, 492 F.3d at 1376-77. The Board notes that the Veteran (and his representative) have not provided an explanation of why he believes his diabetes is related to his period of service. The Veteran has described symptoms of the condition and reported its onset in 2007, many years after his separation from service; however, he has not provided an explanation for why he contends his diabetes is related to his period of active service, or how it could be related to any injury or disease incurred during his period of active service. Unfortunately, no other evidence of a relationship between the Veteran’s diabetes and his period of service is of record. As none of the competent evidence of record indicates that the Veteran’s diabetes either began during, or is otherwise, even potentially, due to his period of service, the Veteran’s claim for service connection for diabetes mellitus must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of- the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b) (2012); see also Gilbert, 1 Vet. App. at 55 (1990). Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. The Board finds that evidence of record indicates that the duty to notify has been satisfied. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The Board also finds that the duty to assist has been satisfied regarding the issues decided on appeal. The Veteran’s service treatment records and identified treatment records have been associated with the claims file. The Board notes that the Veteran was not provided a medical examination regarding his claims for service connection for osteoporosis, acid reflux, a thyroid disability, and diabetes. For each of these disabilities, however, beyond the Veteran reporting that he has developed these disabilities (which he asserted in his application for service connection that each disability began many years after separation from service), the Veteran (and his representative) have not made any argument as to why these conditions should be considered service-connected. Unfortunately, as none of the competent evidence of record even potentially indicates that any of these disabilities are related to the Veteran’s service on a direct or presumptive basis, the Board finds that no such examination is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Veteran has not identified any outstanding records that are relevant to any of the claims denied in this decision. The Board finds that the duty to assist has, therefore, been satisfied and there is no reasonable possibility that further assistance would be capable of substantiating the claims decided on appeal. 38 U.S.C. § 5103A (a)(2) (2012) REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. The Board finds that the Veteran should be provided a VA examination in relation to his claim for service connection for obstructive sleep apnea. While the Veteran reported in his application for service connection that the condition began in November 2002, the Veteran has submitted evidence that his symptoms of sleep apnea were present prior to his separation from service in January 1993. The Veteran submitted a lay statement from his wife of 37 years that he snored loudly and exhibited daytime sleepiness during the mid-1980’s to 1990s. He also submitted a lay statement from E.B., a shipmate and friend, that shared a berthing compartment with the Veteran from 1983 to 1987. E.B. reported witnessing the Veteran snoring and having difficulty sleeping. The Board notes that no medical examination was provided in relation to the Veteran’s claim for service-connection for sleep apnea. While the evidence of record does not establish a diagnosis of sleep apnea until after the Veteran’s period of service, it has been indicated that the Veteran’s symptoms of snoring and daytime somnolence were present during his period of service. The Board finds that the duty to assist warrants that an examination be provided regarding his claim for sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board finds that the medical opinion provided regarding the Veteran’s claim for hypertension is inadequate to resolve the issue on appeal. In January 2016, the examiner opined that the Veteran’s hypertension was less likely than not incurred or caused by the claimed in-service injury, event, or disease. The examiner explained that “there was no evidence in the military records that hypertension had been diagnosed and documented.” The Board notes, however, that while the evidence does not indicate a diagnosis of hypertension that the Veteran’s medical records indicate symptoms of elevated blood pressure readings during service. Particularly, in November 1992, the Veteran was given blood pressure readings over a three-day period from November 28, 1992 to November 30, 1992, with readings of diastolic pressure in excess of 100 on the first two days. The Veteran also was reported to have a blood pressure reading of 160/100 during a GI consult on December 23, 1992. The Board finds that the January 2016 opinion fails to give a reasoned opinion based on the evidence of elevated blood pressure readings prior to his separation from service; accordingly, a new medical opinion should be obtained that discusses these findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The matters are REMANDED for the following action: 1. Undertake appropriate efforts to schedule the Veteran for a VA examination to determine the etiology of his current sleep apnea disability. The claims file and all electronic records must be made available to the examiner. The examiner must report review of the claims file. The examiner is specifically asked to provide the following opinions: Whether it is at least as likely as not (a 50 percent probability) that the Veteran’s current sleep apnea disability was incurred during, or is otherwise due to, his active service from August 1969 to January 1993. The examiner should specifically note the lay statements provided by the Veteran’s wife and E.B. regarding the Veteran’s symptoms of snoring and difficulty sleeping during his period service. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran’s lay assertions. Lay statements of record cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 2. Undertake appropriate efforts to schedule the Veteran for a VA examination with an appropriate physician regarding the nature and etiology of his hypertension. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. The examiner should offer an opinion as to the following: Whether it is as least as likely as not (i.e., 50 percent or greater probability) that his currently diagnosed hypertension was incurred in or is otherwise related to his period of active service. The examiner should specifically note the Veteran’s need for repetitive blood pressure testing on November 30, 1992 and the Veteran’s blood pressure findings during his GI consult in December 1992. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After any other necessary development, readjudicate the Veteran’s claims on appeal. If the claims remain denied, provide the Veteran with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel