Citation Nr: 18147616 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-08 812 DATE: November 5, 2018 ORDER Service connection for Lyme disease and its residuals, to include as secondary to hypertension, is denied. Service connection for sleep apnea is denied. Service connection for a heart disability, to include ischemic heart disease and to include as due to herbicide agent exposure and to include as secondary to Lyme disease and its residuals, is denied. Service connection for bruxism, to include as secondary to sleep apnea, is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and to include as secondary to Lyme disease, is remanded. 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 Lyme disease or residuals of Lyme disease. 2. The preponderance of the evidence is against finding that the Veteran’s sleep apnea was incurred during or caused by active service, and there is no evidence showing that sleep apnea was incurred in or aggravated due to injury or disease during a period of active duty for training (ACDUTRA) or an injury from inactive duty from training (INACDUTRA). 3. 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 heart disability. 4. The preponderance of the evidence is against finding that the Veteran’s bruxism was incurred during or caused by active service, and there is no evidence showing that bruxism was incurred in or aggravated due to injury or disease during a period of ACDUTRA or an injury from INACDUTRA. CONCLUSIONS OF LAW 1. The criteria for service connection for Lyme disease and its residuals, to include as secondary to hypertension, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a heart disability, to include ischemic heart disease and to include as due to herbicide agent exposure and to include as secondary to Lyme disease and its residuals, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 4. The criteria for service connection for bruxism, to include as secondary to sleep apnea, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to July 1968. He was awarded the Meritorious Unit Commendation Ribbon. He also had Reserve service and service in the National Guard.These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for each of Lyme disease, sleep apnea, ischemic heart disease, hypertension, and bruxism. The appellant timely appealed the rating decision with a notice of disagreement received by VA in August 2013. After the RO issued a statement of the case in February 2015, the appeal was perfected with the timely filing of a substantive appeal in the following month. 1. Entitlement to service connection for Lyme disease and its residuals, to include as secondary to hypertension. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of Lyme disease or residuals thereof, and has not had either 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 Veteran has a history of treatment for Lyme disease in 1988, but he indicated afterward that he was in good health. There is no mention of Lyme disease or its treatment in the Veteran’s medical records. He also has not displayed symptoms of Lyme disease residuals, which the January 2016 VA examiner indicated would include large joint arthritis, nerve pain, skin rash, irregular heartbeat, and brain and spinal code inflammation. The examiner noted that the Lyme disease is inactive and the date it became in active was in 1988. 2. Entitlement to service connection for sleep apnea. The Veteran asserts that his sleep apnea is related to his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). There is also no evidence showing that sleep apnea was incurred in or aggravated due to injury or disease during a period of ACDUTRA or an injury from INACDUTRA. Several years prior to the appeal period, a treatment report reflects a history of probable sleep apnea. The Board notes that this is three years prior to the filing of the current claim now on appeal. Additionally, the Board places little weight on it because it is noted to be a “history” and due to it speculative nature with use of the word “probable” to describe the sleep apnea. The evidence during the appeal period weighs against current persistent or recurrent symptoms, to include a diagnosis via sleep study. 3. Entitlement to service connection for a heart disability, to include ischemic heart disease and to include as due to herbicide agent exposure and to include as secondary to Lyme disease and its residuals. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of heart disability, and has not had such disability 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 Veteran has a history of heart palpitations and chest pain, but there is no diagnosis of any cardiac condition, to include upon 2015 VA examination in May 2015. This report notes that various diagnostic testing, to include EKG, chest x-ray, echocardiogram, and Holter monitor were normal. 4. Entitlement to service connection for bruxism, to include as secondary to sleep apnea. The Veteran asserts that his bruxism is related to his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of bruxism, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). There is also no evidence showing that sleep apnea was incurred in or aggravated due to injury or disease during a period of ACDUTRA or an injury from INACDUTRA. The Veteran also contends that his bruxism is secondary to his sleep apnea. However, the Veteran’s sleep apnea is not service connected. See 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and to include as secondary to Lyme disease, is remanded. The Veteran underwent an examination in December 2015. The examiner opined that the Veteran’s hypertension is less likely as not caused by Agent Orange. However, the examiner failed to provide a complete rationale, but only indicated that hypertension is not a “conceded” condition. The Board notes that even with respect to disorders not designated as presumptive, the U.S. Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As such, the Board finds that a remand for a direct service connection opinion is warranted. Additionally, on remand, any outstanding, pertinent VA treatment records should be obtained. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding, pertinent VA treatment records. As many attempts should be made as necessary to obtain the VA records, to include requesting a specific negative response if no records are located. The appellant is to be notified of any unsuccessful effort to obtain outstanding VA and private treatment records to allow the opportunity to obtain and submit those records for VA review. Moreover, notify the appellant that he may submit VA Forms 21-4142 and 21-4142a to authorize any private medical provider to disclose and release to VA information on the Veteran’s treatment, and then request those medical records from the private medical provider(s). Additionally, notify the appellant that he may submit any relevant VA and private treatment records in his possession to VA. 2. After all development has been completed and returned from step 1 above, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to his conceded in-service exposure to an herbicide agent. Double Click Here to Sign Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel