Citation Nr: 18150215 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-02 582 DATE: November 14, 2018 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s sleep apnea is related to service. 2. The preponderance of the evidence shows that the Veteran’s hypertension is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea has been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for establishing service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1981 to March 1990, October 2001 to April 2003, and November 2009 to July 2010. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for sleep apnea The Veteran seeks service connection for his diagnosed sleep apnea, which he claims is related to his active service. In his VA Form 9, the Veteran stated that he was tested for sleep apnea in 2005 and it produced a negative result. However, when he returned from Iraq in 2010, he was retested for sleep apnea and a diagnosis was confirmed. The Veteran reported feeling exhausted after sleep and his wife stated that he was gasping for air at night. He currently uses a continuous positive airway pressure (CPAP) machine. In this regard, the Board finds the Veteran and his wife are competent to report observable symptoms during and since service, and finds their statements credible. See 38 C.F.R. § 3.159 (a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). An August 2005 private opinion confirms the Veteran’s reports of not being diagnosed with sleep apnea at that time. Significantly, VA medical center records show that in October 2010, less than six months after separation from service, the Veteran was diagnosed with sleep apnea. It is reasonable to conclude that sleep apnea was present prior to the date of the sleep test. In an September 2018 private opinion, the provider opined that it is more likely than not that the Veteran’s sleep apnea is due to his military service. The provider stated that he provided the Veteran a sleep apnea test, but he did not qualify for sleep apnea. The provider stated that after returning from Iraq, the Veteran received a diagnosis of sleep apnea and was issued a CPAP machine. The opinion is probative evidence in support of the Veteran’s claim. The preponderance of the evidence is in favor of the Veteran’s claim. Therefore, service connection for sleep apnea is granted. 2. Entitlement to service connection for hypertension The Veteran claims entitlement to service connection for hypertension. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, n.1. The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Id. Service connection for certain chronic diseases, including hypertension, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). Where a chronic disease under 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.” Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. In a May 2012 VA examination, the examiner diagnosed the Veteran with hypertension and opined that it is at least as likely as not that his hypertension is related to his active service. The examiner’s rationale was that the Veteran has required ongoing care and treatment for his hypertension since 2008. In his October 2012 Notice of Disagreement (NOD), the Veteran states that his hypertension condition was present during his military service. He states that it occurred within one year of leaving active service, during a presumptive period. Specifically, the Veteran points to military records that show hypertension in September 2003, within one year of leaving a period of active service. A review of the medical records present a history of elevated blood pressure. The Board finds the Veteran competent to report symptoms during and since service, and finds his statements credible. See 38 C.F.R. § 3.159 (a)(2); Barr, 21 Vet. App. 303. Additionally, in a September 2018 private opinion, the provider stated that it is more likely than not that the Veteran’s high blood pressure is due to his military service. The provider stated that upon review of his military records, it is at least likely as not that the Veteran’s blood pressure has been consistently elevated since 2007. The preponderance of the evidence is in favor of the Veteran’s claim. Therefore, service connection for hypertension is granted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel