Citation Nr: 18146299 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-36 562 DATE: October 31, 2018 ORDER 1. Entitlement to service connection for hypertension is granted. 2. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED 1. The issue of entitlement to service connection for a left knee disability is remanded. 2. The issue of entitlement to an initial rating more than 10 percent for pes planus, with plantar fasciitis, is remanded. FINDINGS OF FACT 1. The Veteran’s current hypertension had its onset in service. 2. The Veteran’s current OSA had its onset in service. CONCLUSIONS OF LAW 1. Hypertension was incurred in active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(b), 3.304, 3.307, 3.309 (2017). 2. Sleep apnea was incurred in active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to July 1990, from August 2002 to July 2003, and from July 2006 to June 2008. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board notes that the issue of entitlement to service connection for erectile dysfunction was previously certified to the Board in the August 2016 VA Form 9. However, the RO granted service connection for erectile dysfunction in a November 2016 rating decision. Thus, as this issue has been granted in full and the Veteran has not expressed disagreement, it is no longer on appeal and is not currently before the Board. As an initial matter, the Veteran has argued that his service with the Army National Guard performed between July 2006 to June 2008 in support of Operation Jump Start, should be considered to have been active duty service. The VA Adjudication Procedure Manual, (VBA Manual M21-1MR) states that the term Active Duty Special Work (ADSW) (now described as Active Duty Support (ADS)), applies to those who are ordered to full-time but temporary duty for operational or support purposes for the Reserve or National Guard. The period of service can vary but is generally less than 180 days. A DD Form 214 is not usually issued for ADS periods less than 180 days. M21-1MR, Part III, Subpart ii.6.A.2.c. ADS for periods of less than 180 days is a type of ADT. If the period of ADS equals or exceeds 180 days, it is considered active duty. ADS periods of less than 180 days are generally recorded on an official order document in the service personnel records. A DD Form 214 is not routinely issued for ADS periods of 180 days or less. Exception: All periods of ADS for the Reserves for operational support are considered active service regardless of length of service. M21-1MR, Part III, Subpart ii.6.A.2.d. Duties performed under ADSW may be for operational, support, or training purposes. The Department of Defense (DoD) defines ADSW as a tour of active duty to fulfill support requirements. VA characterizes ADSW as active duty for the purpose of this topic unless the purpose for going on ADSW was to receive training. M21-1MR, Part III.v.4.C.7.m. If the duties a Veteran performed during ADSW cannot be ascertained, treat the period of service as active duty. Id. The Veteran’s personnel file includes a DD 214 which shows that he had active duty service with the Army National Guard between July 2006 and June 2008. The military personnel records also contain documentation of the Veteran’s orders to ADSW from October 2006 to September 2007 and from October 2007 to July 2008 for the purposes of border security operations. Given that the Veteran’s period of ADSW involved performing border security operations, rather than training, the Board finds that the Veteran’s service between July 2006 and June 2008 may be characterized as active duty service. Service Connection Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In deciding 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to service connection for hypertension is granted. Certain listed chronic diseases, such as hypertension, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate that a condition was noted during service; (2) there is a post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A March 2013 VA examination report indicates a diagnosis of hypertension. As such, the medical evidence of record shows a current diagnosis, so the question before the Board is whether such disability is related to service. At the May 2018 Board hearing, the Veteran credibly testified that he was diagnosed with hypertension while he was in service. He stated that this condition was not treated with medication during active duty, but fluctuated up and down. Service treatment records reflect that the Veteran was diagnosed with hypertension during service. Specifically, documentation related to the Medical Evaluation Board Proceedings, dated June 2011, found that the Veteran had hypertension at separation, which was incurred while he was entitled to base pay. These records further noted blood pressure readings of 145/94, 151/92, and 140/80, which indicate continuity and chronicity of the condition. See Service Treatment Records dated December 19, 2006, November 28, 2007, and July 10, 2010. Therefore, the service treatment records confirm that the Veteran was diagnosed with hypertension during active duty service, which continued after active duty. The Board finds the testimony and service treatment records to be of high probative value. Given that, and that there otherwise appears to be no material dispute that the Veteran’s current hypertension is a continuation of the symptoms deemed to have first manifested during service, it may be reasonably concluded that hypertension was incurred in service. Therefore, service connection is warranted. See 38 C.F.R. § 3.309(a). 2. Entitlement to service connection for OSA is granted. A March 2013 VA examination report indicates a diagnosis of mild sleep apnea. As such, the medical evidence of record shows a current diagnosis, so the question before the Board is whether such disability is related to service. Additionally, the Veteran provided competent and credible testimony during the May 2018 hearing. He testified that the onset of the sleep apnea symptoms occurred in 2008, while he was in service. He stated that he underwent a sleep study and was issued a CPAP machine. The Veteran further testified that his fellow soldiers and his wife noticed that he would stop breathing and snore during the night. Service treatment records reflect that the Veteran was diagnosed with OSA during service. Specifically, a Statement of Medical Examination and Duty Status, dated February 2008, noted that the Veteran had undergone a sleep study and was diagnosed with sleep apnea at that time. Furthermore, documentation related to the Medical Evaluation Board Proceedings found that the Veteran had obstructive sleep apnea at separation, which was incurred while he was entitled to base pay. Therefore, the service treatment records confirm that the Veteran was diagnosed with OSA during active duty service, and corroborate his testimony at the May 2018 hearing. The Board finds the testimony and service treatment records to be of high probative value. Given that, and that there otherwise appears to be no material dispute that the Veteran’s current sleep apnea is a continuation of the symptoms deemed to have first manifested during service, it may be reasonably concluded that sleep apnea was incurred in service. Therefore, service connection is warranted. REASONS FOR REMAND 1. The issue of entitlement to service connection for a left knee disability is remanded. The Veteran contends that he has a left knee disability due to his military service. Service treatment records reflect that the Veteran reported bilateral knee pain while on active duty. See Statement of Medical Examination and Duty Status dated February 11, 2008. He is currently service-connected for a right knee disability and pes planus, with plantar fasciitis. Although the Veteran was afforded a VA examination for his knees in March 2013, the examiner failed to provide a nexus opinion. Thus, the Board finds that a new VA examination is warranted to determine the etiology of the Veteran’s left knee disability. 2. The issue of entitlement to an initial rating more than 10 percent for pes planus, with plantar fasciitis, is remanded. At the May 2018 Board hearing, the Veteran testified that his foot disability had worsened since his previous examination. Specifically, he stated that he had loss of motion and experienced pain, weakness, and fatigue. Based on the Veteran’s testimony of worsening symptomatology, and the fact that his last VA examination related to his pes planus took place in March 2013, the Board finds that he should be afforded another VA examination to determine the current severity of his service-connected pes planus. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of any diagnosed left knee disability. The examiner should provide the following opinions: (a) Whether it is at least as likely as not that the Veteran’s left knee disability had its onset in service or is otherwise related to an in-service disease or injury service? (b) Whether it is at least as likely as not that the left knee is either due to OR aggravated by the Veteran’s service-connected right knee disability or pes planus? A clear and complete rationale should be provided for any opinions expressed. 3. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected pes planus with plantar fasciitis. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s pes planus. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel