Citation Nr: 18145427 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 12-05 333 DATE: October 29, 2018 ORDER Entitlement to service connection for a chronic headache disability, to include as secondary to a service-connected disability or as due to herbicide exposure is denied. Entitlement to service connection for chronic upper respiratory infections and sleep apnea (claimed as inability to breathe), to include as secondary to a service-connected disability or as due to herbicide exposure is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a chronic headache disability. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of any condition manifested by chronic upper respiratory infections. 3. The Veteran’s sleep apnea is not related to service, his service-connected disabilities, or his conceded herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic headache disability, to include as secondary to a service-connected disability or as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a) (2017). 2. The criteria for service connection for chronic upper respiratory infections and sleep apnea (claimed as inability to breathe), to include as secondary to a service-connected disability or as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1966 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of this hearing is of record. This matter was last before the Board in August 2017, at which time it was remanded for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a chronic headache condition, to include as secondary to a service-connected disability or as due to herbicide exposure The Veteran contends that he suffers from severe headaches. Specifically, he alleges that his headaches are due to his service-connected disabilities, or alternatively, caused by his conceded herbicide exposure. The question for the Board is whether the Veteran has a current disability that began during service, is at least as likely as not related to an in-service injury, event, or disease, or is caused or aggravated by a service-connected disability. The Board concludes that the Veteran does not have a current diagnosis of any headache or migraine disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The October 2017 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of headaches, he did not have a diagnosis of a chronic headache condition. Further, despite post-service treatment for headaches, VA and private treatment records do not contain a diagnosis of a chronic headache condition; only treatment for what was determined to be a tension headache caused by stress. While the Veteran believes that he has a current diagnosis of a chronic headache disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Absent a showing of a diagnosis due to disease or injury, service connection for a chronic headache disability cannot be granted. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for a chronic headache condition must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). 2. Entitlement to service connection for chronic upper respiratory infections and sleep apnea (claimed as inability to breathe), to include as secondary to a service-connected disability or as due to herbicide exposure Chronic Upper Respiratory Infections The Veteran contends that he suffers from chronic upper respiratory infections and sleep apnea that are caused by his service connected disabilities, or alternatively, his conceded herbicide exposure. Specifically, the Veteran contends that both conditions manifest in an inability to breathe. The Veteran’s service treatment records (STRs) indicate that he was treated for an upper respiratory infection during service in 1967. Post-service treatment records indicate that the Veteran has complained of, and been treated for respiratory infections to include bronchitis, sinusitis and pharyngitis; all of which were treated with antibiotics and resolved. The Board concludes that the Veteran does not have a current diagnosis of any condition manifested by chronic upper respiratory infections and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The October 2017 VA examiner evaluated the Veteran and determined that, while the Veteran has been treated for various upper respiratory conditions in the past, he did not have a diagnosis of any condition manifested by chronic upper respiratory infections. The examiner further noted that any post-service respiratory conditions that the Veteran was treated for post-service were all acute illnesses and resolved without sequelae. While the Board acknowledges that the Veteran believes he has a condition manifested by chronic upper respiratory infections, for the same reasons stated above, the Veteran is not competent to provide a diagnosis. See Jandreau, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board gives more probative weight to the competent medical evidence. Sleep Apnea As to the Veteran’s sleep apnea, the Veteran contends that he was first diagnosed with sleep apnea in the 1980’s. The medical evidence of record shows that the Veteran underwent a sleep study and was diagnosed with obstructive sleep apnea in 2002. See C&P Exam, dated October 4, 2017. The Board notes that the Veteran is service-connected for prostatectomy with erectile dysfunction and major depressive disorder related to his prostatectomy with erectile dysfunction. During the Veteran’s October 2017 examination, the examiner indicated that it was less likely than not that the Veteran’s sleep apnea was related to his upper respiratory infections in service, his service-connected disabilities, or his conceded herbicide exposure. The examiner reasoned that there is no cause and effect relationship between viral upper respiratory infections and sleep apnea; adding that acute viral upper respiratory infections are self-limiting and resolve without sequelae. The examiner also indicated that sleep apnea is not a presumptive condition known to be caused by herbicide exposure. Lastly, as to the theory of sleep apnea being caused or aggravated by the Veteran’s service-connected disabilities, the examiner opined that there is no cause and effect relationship between sleep apnea and the Veteran’s service-connected prostatectomy with erectile dysfunction and major depressive disorder. The Board gives great probative weight to the findings of the October 2017 VA examiner. While the Veteran may contend that his sleep apnea is related to service or a service-connected disability, he is not considered competent to draw an etiological connection, as he does not possess the requisite medical expertise. See Jandreau, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for chronic upper respiratory infections and sleep apnea must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel