Citation Nr: 18145634 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 14-17 813 DATE: October 30, 2018 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), is denied. Entitlement to service connection for hypertension, is denied. Entitlement to service connection for headaches, is denied. Entitlement to service connection for sleep apnea, is granted. Entitlement to service connection for a heart disability, diagnosed as coronary artery disease (CAD) with myocardial infarction, is granted. FINDINGS OF FACT 1. The Veteran’s chronic obstructive pulmonary disease (COPD) is not caused by or related to the Veteran’s military service. 2. The Veteran’s hypertension is not caused by or related to the Veteran’s military service. 3. A chronic headache disorder is not caused by or related to the Veteran’s military service. 4. The Veteran’s sleep apnea is a result of his service-connected psychiatric condition. 5. The Veteran’s heart disability is a result of his service-connected sleep apnea and psychiatric condition CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic obstructive pulmonary disease (COPD) have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 5. The criteria for entitlement to service connection for CAD with myocardial infarction have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to May 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2011, October 2012, September 2014, and May 2017 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2016, the case came before the Board and the Board denied an earlier effective date for the award of service connection for a hiatal hernia. In addition, the Board remanded the Veteran’s claim for entitlement to service connection for a psychiatric disability, heart disability, diabetes, and bilateral hearing loss. In July 2017, the RO granted service connection for right ear hearing loss. Thus, this issue is no longer before the Board. In February 2018, the case returned to the Board and the Board granted service connection for a psychiatric disability and denied service connection for diabetes. In addition, the Board remanded the Veteran’s claim for service connection for a heart disability. Service Connection The Veteran contends that his disabilities are related to his military service In order to establish service connection for the claimed disability, 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). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2017). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). 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). In order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). First, the Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for this issue. However, the Board finds that a VA examination is not necessary in order to decide this claim. In disability compensation claims, the VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability ,but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet App. 79 (2006). Here, as discussed below, the Veteran’s service treatment records demonstrate no evidence of an in-service event, injury, or disease that caused the Veteran to develop COPD, the Veteran’s post-service medical records do not demonstrate an association with the Veteran’s military service and his current disability, and there is sufficient evidence to decide this claim. Thus, for the above stated reasons, a VA examination is not warranted for the Veteran’s claim for service connection for COPD. As to a current diagnosis, the Veteran’s records show a diagnosis of COPD. Turning to the medical evidence at hand, the Board has reviewed the Veteran’s service treatment records and the Board notes that the Veteran’s service treatment records are silent for COPD. The separation examination revealed that the Veteran denied any history of asthma or other respiratory problems. In addition, the Board has reviewed the Veteran’s VA treatment records. After a review of the Veteran’s post-service medical records, the Board finds no evidence of a doctor providing a nexus or medical link between the Veteran’s present disability and his military service. In sum, the Board finds that service connection for COPD is not warranted. After a review of the Veteran’s claims file the Board has found no in-service event, injury, or disease that has caused the Veteran to develop COPD. Moreover, the Veteran’s post-service medical history contains no evidence that demonstrates that his present disability is related to his military service. For the above-stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and entitlement to service connection for COPD is not warranted. 2. Entitlement to service connection for hypertension First, the Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for this issue. However, the Board finds that a VA examination is not necessary in order to decide this claim. In disability compensation claims, the VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability ,but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet App. 79 (2006). Here, as discussed below, the Veteran’s service treatment records demonstrate no evidence of an in-service event, injury, or disease that caused the Veteran to develop hypertension, the Veteran’s post-service medical records do not demonstrate an association with the Veteran’s military service and his current disability, and there is sufficient evidence to decide this claim. Thus, for the above stated reasons, a VA examination is not warranted for the Veteran’s claim for service connection for hypertension. As to a current diagnosis, the Veteran’s records show a diagnosis of hypertension. Turning to the medical evidence at hand, the Board has reviewed the Veteran’s service treatment records and the Board notes that the Veteran’s service treatment records are silent for hypertension. The Veteran’s separation examination revealed blood pressure of 120/72 and that the Veteran specifically denied a history of high or low blood pressure. In addition, the Board has reviewed the Veteran’s VA treatment records. After a review of the Veteran’s post-service medical records, the Board finds no evidence of a doctor providing a nexus or medical link between his present disability and his military service. In sum, the Board finds that service connection for hypertension is not warranted. After a review of the Veteran’s claims file the Board has found no in-service event, injury, or disease that has caused the Veteran to develop hypertension. Moreover, the Veteran’s post-service medical history contains no evidence that demonstrates that his present disability is related to his military service. For the above-stated reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and entitlement to service connection for hypertension is not warranted. 3. Entitlement to service connection for headaches First, the Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for this issue. However, the Board finds that a VA examination is not necessary in order to decide this claim. In disability compensation claims, the VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability ,but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon; supra. Here, as discussed below, the Veteran’s service treatment records show no evidence of an in-service event, injury, or disease that caused a headache condition, the Veteran’s post-service medical records do not demonstrate an association with the Veteran’s military service and his current disability, and there is sufficient evidence to decide this claim. Thus, for the above stated reasons, a VA examination is not warranted for the Veteran’s claim for service connection for a headache condition. Initially, the Board has reviewed the Veteran’s service treatment records. After a review of the Veteran’s records, the Board finds that the Veteran’s records are silent for signs and symptoms of a headache condition. In fact, the Veteran specifically denied a history of frequent or severe headache. See May 1975 separation examination. Additionally, the Board has reviewed the Veteran’s VA treatment records and the Board notes that the Veteran’s VA treatment records do not show that the Veteran suffers from a chronic headache disorder. Specifically, the Board notes that a mental health treatment note demonstrated that the Veteran denied seizures, loss of consciousness, and headaches. See July 25, 2017 VA progress note. Moreover, a routine examination of the Veteran was negative for symptoms of headaches, dizziness, convulsions, memory loss, change in sensation, and poor coordination. See December 6, 2017 VA progress note. In sum, the Board finds that service connection for a headache disorder is not warranted. After a review of the record, the Board finds that the most probative pieces of evidence are the Veteran’s service treatment records and the Veteran’s post-service medical records. The Veteran’s medical history demonstrates that the Veteran did not suffer an in-service injury, event, or disease that caused him to develop a headache disability nor does it reflect that the Veteran suffers from a chronic headache condition. The Board has considered the Veteran’s contention that he suffers from a headache condition that is related to service; however, the Veteran’s contentions are outweighed by the medical evidence of record that fails to show the Veteran has a current disability that is related to his military service. For the above-stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and entitlement to service connection for a headache disorder is not warranted. 4. Entitlement to service connection for sleep apnea As to a current diagnosis, the Veteran has been diagnosed with obstructive sleep apnea. As to the in-service incurrence, the Board notes that the Veteran’s service treatment records are silent for complaints, treatment, or a diagnosis for this condition. See May 1975 separation examination. However, the Board notes that the Veteran has been awarded service connection for an acquired psychiatric disorder to include anxiety. Turning to the medical evidence at hand, the Veteran’s private doctor submitted an opinion regarding the nature and etiology of the Veteran’s condition. The Veteran’s doctor stated that “research has shown that anxiety and other psychiatric disorders are commonly associated with obstructive sleep apnea.” The doctor added “a recent study found an arousal-based mechanism initiated by anxiety that promotes the development of obstructive sleep apnea in trauma survivors.” Moreover, the doctor cited another study that showed that sleep apnea and anxiety symptoms decreased with CPAP treatment which demonstrated evidence of the co-morbidity of these conditions. The doctor concluded by stating that based on the research cited above, review of the record, and interview with the Veteran, I feel it is as likely as not that his anxiety aided in the development of and permanently aggravates his obstructive sleep apnea and coronary artery disease.” See October 2015 H.S. private opinion. The Board further notes that the Veteran was not afforded a VA examination for this condition and this opinion is the only medical opinion of record. In sum, the Board finds that service connection is warranted for the Veteran’s sleep apnea. In reaching this conclusion, the Board has reviewed the Veteran’s medical history and the available medical opinion. After a review of the record, the Board finds that the evidence, both positive and negative as to the issue of service connection for sleep apnea is in equipoise. Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for the Veteran’s sleep apnea. 5. Entitlement to service connection for a heart disability. As to a current diagnosis, the Veteran has been diagnosed with coronary artery disease with myocardial infarction. See April 2018 VA examination. As to the in-service incurrence, the Board notes that the Veteran’s service treatment records are silent for complaints, treatment, or a diagnosis for a heart condition. See May 1975 separation examination. The Board notes that the Veteran was awarded service connection for a psychiatric condition to include anxiety and sleep apnea. Turning to the medical evidence at hand, the Veteran attended a VA examination in April 2018. The examiner diagnosed the Veteran’s heart disability as coronary artery disease with myocardial infarction. The examiner then opined that “he has been diagnosed with Diabetes Mellitus in 2000, hypercholesterolemia in 2000, he smoked for over 15 years, over two packs per day, all these are risk factors for coronary artery disease, these are the risk factors that caused him to have the current heart condition.” Lastly, the examiner opined that “anxiety is not medically known to be a risk factor for heart conditions nor cause aggravation of heart conditions. Therefore, the Veteran’s coronary artery disease with myocardial infarction, was less likely than not aggravated beyond its natural progression by the Veteran’s service connected psychiatric disorder (anxiety).” See April 2018 VA examination. However, the Board further notes that the Veteran has submitted a medical opinion from his private doctor. The doctor stated that it was his opinion that it is as likely as not that the Veteran’s anxiety aided in the development of and permanently aggravates the Veteran’s coronary artery disease. The doctor then went on to cite the medical research that he based his opinion on. The first piece of medical information the doctor relied on was a study that concluded that obstructive sleep apnea is a risk factor for coronary artery disease. The second piece of medical information that the doctor relied on was a medical article that indicated that anxiety is a contributing factor to heart disease. Following the discussion of these pieces of evidence, the doctor opined that based on the research cited above, review of the record, and interview with the Veteran, I feel it is as likely as not that his anxiety aided in the development of and permanently aggravates his obstructive sleep apnea and coronary artery disease.” See October 2015 H.S. private opinion. In sum, the Board finds that service connection is warranted for the Veteran’s heart disability diagnosed as CAD with myocardial infarction. In reaching this conclusion, the Board has reviewed the Veteran’s medical history and the available medical opinions. After a review of the record, the Board finds that the evidence, both positive and negative as to the issue of service connection for a heart disability is at least in equipoise. Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for the Veteran’s heart disability diagnosed as CAD with myocardial infarction. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel