Citation Nr: 18147865 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-35 107 DATE: November 6, 2018 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a heart disorder, characterized as myocardial infarction, is denied. FINDINGS OF FACT 1. The Veteran’s sleep apnea was not caused by or related to active duty service. 2. The Veteran’s heart disorder was not caused by or related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a heart disorder, characterized as myocardial infarction, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to September 1983 and August 2004 to January 2006. The Board acknowledges that the Veteran has not been provided with a VA examination to determine whether his sleep apnea and heart disorder are related to his active duty service. With respect to the Veteran’s sleep apnea, given the absence of in-service evidence of manifestations of sleep apnea and the lack of any evidence of sleep apnea until more than seven years after Veteran’s separation from service, the Board determines that a VA examination to determine whether his sleep apnea is related to his active duty service is not warranted. 38 C.F.R. § 4.2; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Similarly, given the absence of in-service evidence of manifestations of a heart disorder and the lack of any evidence of a heart disorder until more than seven years after the Veteran’s separation from service, the Board determines that a VA examination to determine whether his heart disorder is related to his active duty service is not warranted. Id. The Board also notes that the Veteran’s service treatment records from June 1974 to September 1983 are not available for review as part of the claims file. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c). All identified and available treatment records have been secured. The Veteran’s service treatment records from June 1974 to September 1983 have not been found and all efforts to locate them were exhausted. VA has a heightened duty to assist a veteran in the development of a claim when some or all service treatment records are lost or destroyed and must assist him in identifying the types of alternate or collateral sources of evidence that may assist him in substantiating his claim, such as statements from service medical personnel and “buddy” certificates or affidavits. See Dixon v. Derwinski, 3 Vet. App. 261 (1992). Here, the RO attempted to obtain these records, documented the file with a memorandum of unavailability, and properly notified the Veteran of such unavailability in correspondence from November 2013. Accordingly, there is no prejudice to the Veteran in moving forward with a decision without such records. Service Connection 1. Entitlement to service connection for sleep apnea 2. Entitlement to service connection for a heart disorder, characterized as myocardial infarction The Veteran asserts that his sleep apnea and heart disorder were caused by or are related to his active duty service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Board concludes that although the Veteran has current diagnoses of sleep apnea and myocardial infarction, the preponderance of the evidence weighs against finding that those disorders began during service, or are otherwise etiologically to service. 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), 3.304, 3.307, 3.309. Initially, the Board notes that the Veteran’s service treatment records fail to establish that the Veteran’s sleep apnea and heart disorder were incurred in or are related to his active duty service. With respect to the Veteran’s sleep apnea, which was diagnosed in May 2013, the service treatment records are devoid of any reports or complaints of sleeping problems such as fatigue, snoring, or frequent waking. In fact, service treatment records from the Veteran’s reserve duty, including reports of medical history from February 1987, June 1995, and September 2000 reflect that the Veteran did not have frequent trouble sleeping. With respect to the Veteran’s heart disorder, which was diagnosed in October 2013, the service treatment records are again devoid of any reports or complaints of cardiovascular or heart related problems. To the contrary, in reports of medical history from February 1987, June 1995, and September 2000, the Veteran reported that he did not experience palpitation or pounding of the heart, heart trouble, heart murmurs, or pain or pressure in his chest. In examinations from June 1991, June 1995, and September 2000, the examining physicians determined that the Veteran’s heart was “normal.” Next, the post-service evidence does not indicate that the Veteran has experienced continuous symptoms related to his sleep apnea and heart disorder since active duty service. With respect to sleep apnea, the objective medical evidence does not demonstrate any symptoms of sleep apnea until the Veteran was diagnosed with sleep apnea in May 2013. Although the post-service evidence includes reports that the Veteran had difficulty sleeping prior to his diagnosis, such as in an August 2009 treatment record, his difficulty sleeping was not related to sleep apnea, and instead to his experiences while deployed. Similarly, the post-service evidence does not provide any objective indication of symptoms of a heart disorder until the Veteran was diagnosed with myocardial infarction in October 2013. Therefore, continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus. The Board acknowledges the statements from the Veteran regarding the history of symptoms of his disorders since service. While the Veteran is competent to report that he experienced symptoms, he is not competent to provide a diagnosis or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element. As an initial matter, the large gap between the Veteran’s service and treatment for these disorders weighs against the Veteran’s claims. Moreover, the February 1987, June 1995, and September 2000 reports of medical history and June 1991, June 1995, and September 2000 examination reports are inconsistent with claims that symptoms of the Veteran’s sleep apnea and heart disorder have persisted since service because these records show that the Veteran did not have frequent trouble sleeping and that he was not experiencing symptoms related to a heart disorder. Additionally, the Board notes that prior to filing the claims on appeal, in June 2009, the Veteran filed several claims for VA benefits. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out other claims for other benefits, but made no reference to the disorders he now claims, weighs heavily against his credibility. Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorders to active duty service, despite his contentions to the contrary. Moreover, the Board notes that the Veteran has not provided any evidence, including private opinions and/or medical evidence, to establish a nexus between the disorders on appeal and active service. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his sleep apnea and heart disorder to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his sleep apnea and heart disorder. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, the disorders on appeal are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his disorders are related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. As an additional matter, the Board notes that the Veteran has attributed his disorders to his service in Iraq. It is noted that service connection may be warranted on a presumptive basis for veterans with service in the Southwest Asia theater of operations for objective indications of a qualifying chronic disability, that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). However, neither a heart disorder or sleep apnea are among the “qualifying chronic disabilities” subject to this regulation. As such, service connection is also not warranted on this basis. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claims and there is no doubt to be otherwise resolved. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel