Citation Nr: 18145147 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-40 024 DATE: October 26, 2018 ORDER Service connection for hypertension is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran experienced “chronic” symptoms of hypertension during service. 2. The Veteran has experienced chronic and continuous symptoms of hypertension since service separation. CONCLUSION OF LAW The criteria to establish service connection for hypertension are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1982 to November 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Service Connection Laws and Regulations Under the relevant laws and regulations, service connection will be granted for a disability that was caused or aggravated by a disease or injury in active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection requires evidence of 1) an in-service disease or injury; 2) a current disease or disability; and 3) a nexus between the in-service event and the current disease or disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Further, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension (as a cardiovascular-renal disease), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For chronic disabilities listed under 38 C.F.R. § 3.309 (a), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303 (b). Hypertension is a chronic disability recognized under 38 C.F.R. § 3.309 (a) and the continuity of symptomatology provisions are applicable. Id. Under 38 C.F.R. § 3.303 (b), 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 Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service Connection Analysis for Hypertension The Veteran maintains that his hypertension first manifested in service; as such, he believes service connection is warranted. Hypertension refers to persistently high arterial blood pressure. For VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2017). This provision also states that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. In this case, the medical evidence of record confirms a diagnosis of hypertension. See e. g., April 2013 VA examination report. Next, the Board finds that the evidence is in equipoise on the question of whether symptoms of hypertension were “chronic” in service. The Veteran’s service entrance examination report does not note a diagnosis of hypertension; therefore, he is presumed to have been sound upon entry. Although his service treatment records do not show an actual diagnosis of hypertension, they do show numerous elevated blood pressure readings during service. For example, in a January 1982 note, the Veteran was seen for trauma to the head after being struck. His blood pressure was recorded as 132/98. In a February 1985 treatment note, the Veteran was seen for complaints of sharp chest pain, and upon evaluation, the Veteran’s heart sounds were within normal limits and his rate was normal. Blood pressure readings were conducted and were recorded as 160/90 (R) and 160/94 (L). In February 1985, the Veteran underwent a dental health questionnaire. At that time, his blood pressure was recorded as 152/88. In April 1988, the Veteran was seen for a rash on his arms and legs. The Veteran had no other symptoms and it was noted that he was “not sick at all.” At that time, however, the Veteran’s blood pressure was 168/70. In April 1988, the Veteran underwent a dental health questionnaire. At that time, it was noted that the Veteran had high blood pressure and a reading of 128/82 was noted. In a May 1988 note, the Veteran’s blood pressure was 140/88. In July 1988, blood pressure reading showed 140/90 and the Veteran was seen for irritation from shaving. In a September 1988 treatment record, the Veteran was noted to have a “HX of HBP,” however, a blood pressure reading was not provided at that time. The next day, the Veteran was seen for a sharp pain in his chest for the last 6 months and also complaints of headaches. At that time, the Veteran’s blood pressure was 118/94. In an October 1988 Report of Medical History, completed by the Veteran at service separation, he specifically noted that he occasionally had had high blood pressure readings. A corresponding October 1988 Report of Medical Examination, also completed at service separation, showed that the Veteran’s blood pressure was 120/66. The Board finds that symptoms of hypertension were “continuous” since service. Post-service VA treatment records include a February 2013 VA treatment record where it was noted that his “adult illnesses” included “HTN—dx’d 1988.” In his November 2012 claim for VA compensation benefits, the Veteran indicated that his hypertension began in approximately 1984. Moreover, during an April 2013 VA examination, the Veteran reported that the onset of his hypertension was in about 1986 as he started to have bad headaches. He indicated that he had been on hypertensive mediation since 1991; however, medical records had been destroyed by his previous physician. Resolving any reasonable doubt in the Veteran’s favor, he had chronic in-service symptoms of hypertension and continuous symptoms of hypertension ever since service and his hypertension has not been found to be attributable to an intercurrent cause. As such, the criteria for presumptive service connection for hypertension under 38 C.F.R. § 3.303 (b) have been met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran maintains that his sleep apnea first manifested in service and was incurred in service. The Veteran submitted statements from his family member, to include from his spouse who witnessed his sleep pattern during periods of service. VA treatment records show a diagnosis of sleep apnea with the use of a CPAP machine, but they do not provide an initial date of diagnosis. In his November 2012 claim for VA compensation benefits, the Veteran indicated that his sleep apnea began in 1984. The Veteran has not been afforded a VA examination regarding his currently diagnosed sleep apnea. A VA examination may assist the Board in determining the onset date and/or likely etiology of the Veteran’s sleep disorder. As such, a remand is warranted. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to assist in determining the etiology of his sleep apnea. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner is asked to address the following: (a.) Elicit from the Veteran any signs and symptoms of sleep apnea he experienced during service. (b.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was incurred in service or is otherwise related to service. (NOTE: the examiner should specifically address and consider statements from the Veteran’s family members). (c.) All opinions are to be accompanied by a rationale consistent with the evidence of record. 3. Thereafter, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel