Citation Nr: 18152710 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-17 886 DATE: November 27, 2018 ORDER Service connection for sleep apnea is denied. Service connection for hypertension is denied. Service connection for diabetes mellitus is denied. Service connection for mental disorder (claimed as a psychiatric condition) is denied. An initial evaluation in excess of 10 percent for coronary artery disease, status post myocardial infarctions prior to May 23, 2017 and in excess of 60 percent afterwards for CAD is denied. REMANDED The claim for service connection for tinnitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that the Veteran has hypertension due to a disease or injury in service, to include specific in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the Veteran has diabetes mellitus due to a disease or injury in service, to include specific in-service event, injury, or disease. 4. 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 mental disorder (claimed as a psychiatric condition). 5. Prior to May 23, 2017, the Veteran’s a workload less than 7 METS 10 METS was not shown to cause dyspnea, fatigue, angina, dizziness; evidence of cardiac hypertrophy or dilation was not shown on electrocardiogram, echocardiogram, or X-ray; and neither congestive heart failure nor left ventricle ejection fraction of 50 percent or less was shown. 6. As of May 23, 2017, a workload greater than 3 METS but not greater than 5 METS resulting in dyspnea and fatigue; however, a diagnosis of chronic congestive heart failure or left ventricle ejection fraction of 30 percent or less has not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for mental disorder (claimed as a psychiatric condition) have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for rating in excess of 10 percent before May 23, 2017 and in excess of 60 percent afterwards for CAD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to April 1967 and August 1967 to February 1984. The Veteran was offered an opportunity to testify before the Board, but he declined. This matter is on appeal from June 2017, May 2016, March 2015 and June 2014 rating decisions. The Board notes that the record does not contain VA treatment records and private treatment records, were submitted by the Social Security Administration per VA request. However, in a signed letter dated in December 2017, the Veteran’s representative waived any additional time for him to send additional evidence or arguments and requested that the case be forward to the Board for a decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Sleep Apnea The Veteran is seeking service connection for sleep apnea, but has provided no explanation as to why he believes service connection is warranted. The Veteran’s service treatment records (STRs) show no complaints, symptoms, diagnosis, or treatment of sleep apnea during his active military service. His records do show evaluations for sinus and throat conditions attributed to allergic rhinitis (discussed below). The Veteran underwent a private sleep study in February 2014 which resulted in a diagnosis of moderate obstructive sleep apnea. However, this was approximately 30 years after the Veteran’s military service concluded. At a VA examination in 2015, the Veteran suggested that his sleep apnea had been diagnosed in the 1990s, but this would still mark the onset of the condition years after active duty. The Veteran also stated that even as far back as basic training he had experienced sleep problems, with loud snoring. However, this fact alone is not diagnostic of PTSD. Several medical opinions were obtained to assess the etiology of the Veteran’s sleep apnea. However, in February 2015, a VA examiner concluded that it was less likely than not that the Veteran’s sleep apnea incurred in service or was caused by service, to include as a result of any sinus and throat issues. The examiner noted that the Veteran separation examination notes a history of seasonal hay fever for 13 years and acute sinusitis. A second examiner also reviewed the claim, but found that the Veteran’s obstructive sleep apnea was less likely than not related to sinus and throat conditions during the active military service. The examiner acknowledged that the Veteran had been seen for allergic rhinitis, but found that there was no further documentation pertaining to narrowing of the claimant’s nostrils or significant tonsillar hypertrophy is noted, which could have caused symptoms of obstructive sleep apnea. Here, the Board notes that the Veteran’s sinus and throat issues were evaluated in service by Ear Nose and Throat physician and he was diagnosed as having allergic rhinitis, and treated with steroids and antihistamines. Both VA examiners noted that although the Veteran was seen for allergic rhinitis, the Veteran’s service treatment records do not document sleep apnea risk factors or symptoms to include: narrowing of the Veteran’s nostrils, thick neck, deviated septum, or enlarged tonsils or adenoids. which the examiners stated could suggest symptoms of obstructive sleep apnea. The examiners concluded that the Veteran’s sleep apnea is less likely than not related to his symptoms of allergic rhinitis and sore throat. The opinion is probative because the examiner provided supportive rational and the preponderance of the evidence weighs against finding that in-service disease occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). While the Veteran believes his sleep, apnea is related to in-service disease, he lacks the medical expertise or training to diagnose such a disorder. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, multiple VA opinions have concluded that it was less likely than not that the Veteran’s sleep apnea either began during or was otherwise caused by his military service. These opinions have not been challenged or undermined by any competent evidence, and are afforded great weight. Accordingly, service connection for sleep apnea is denied. 2. Hypertension The Veteran is seeking service connection for hypertension, but has not provided any explanation as to why service connection should be granted. The Veteran’s service treatment records do not contain complaints, treatment, or diagnosis of hypertension during his active military service. A review of the service treatment records indicates that the Veteran’s systolic blood pressure during his service ranged from 110 to 116 and his diastolic blood pressure during his service ranged from 50 to 74. The Veteran also underwent several medical examinations including a separation medical examination in March 1983, in which his vascular system was evaluated as normal. As such, the evidence of record simply does not demonstrate a diagnosis of hypertension during the Veteran’s service. Following the January 2015 review of the Veteran’s claims folder, the examiner opined that the Veteran’s current hypertension condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event to include chest pains. The examiner reported that several normal blood pressure measurements were noted in the review of the medical records, and there is no documentation of blood pressure readings that were significantly elevated. The opinion is probative because the examiner provided supportive rational and the preponderance of the evidence weighs against finding that in-service disease occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Service connection is denied because the evidence of record shows that the Veteran current hypertension condition neither occurred in nor was caused by the Veteran’s active military service. Further, there is no medical evidence showing hypertension manifested to a compensable degree within one year of his discharge from service. While the Veteran believes his hypertension is related to in-service disease, he has not been shown to have the medical training or expertise to provide such an opinion. As described, the preponderance of the evidence weighs against finding that the Veteran’s hypertension began or was caused by his active service. Accordingly, service connection for hypertension is denied on a direct and secondary basis. 3. Diabetes The Veteran is seeking service connection for diabetes, arguing that he had an elevated blood sugar reading during service. The Veteran service treatment records do not contain complaints, treatment, or diagnosis for diabetes. Service treatment records do show that a lab report from April 1983 showed a onetime finding of elevated blood sugar level. However, service treatment records do not record any other complaints of increased blood sugar levels. All in service physical examinations including the Veteran’s separation examination show a negative test blood sugar test results, and the Veteran’s service records are silent for a diagnosis of diabetes. While service connection may be awarded on a presumptive basis if it is shown that the Veteran was exposed to herbicide agents, such as Agent Orange, during service. However, here, no such allegation has been raised, and while the Veteran had some foreign service, he has not been shown to have been stationed anywhere in which herbicide exposure would be presumed. As such, presumptive service connection is not warranted. The records from the Social Security Administration show that in 1998, the Veteran was noted to have early diabetes or glucose intolerance, and a medical record dated in June 2000 indicated a diagnosis of glucose intolerance. There is no evidence of a diagnosis of diabetes mellitus within a year of discharge from service. See 38 C.F.R. 3.307. The claims file has been reviewed, but is void of any competent evidence suggesting that the Veteran’s diabetes mellitus either began during or was otherwise caused by his military service. As such, the criteria for service connection have not been met, and Veteran’s claim is denied. 4.Mental Disorder The Veteran is seeking service connection for a mental disorder, but has not advanced any basis for why such would be warranted. Service records (STRs) do not contain complaints of, treatment for, or a diagnosis of any mental disorder. The Veteran’s private treatment records submitted by the Social Security Administration do not show evidence of mental disorder. For example, physical examination and history reported by the Veteran in May 1993 and the Veteran’s report of his work history in service, shows no psychological issues. There are no treatment records following service that show a chronic mental condition. As such, the evidence indicates that the Veteran is not currently shown to have a mental disorder. Even if a current mental disorder was diagnosed, there is no suggestion, beyond the Veteran’s own claim for service connection, that the mental disorder either began during or is otherwise caused by his military service. The Board finds no basis to order a VA examination based on the Veteran’s request for service connection alone. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Accordingly, service connection for a mental disorder is denied. Increased Rating In July 2013, the Veteran filed his service connection claim for CAD, which was granted by a May 2016 rating decision and assigned a 10 percent rating effective the date the claim was received. A June 2017 rating decision increased the rating to 60 percent effective May 2017. The Veteran asserts that he is entitled to a higher rating in excess or 10 percent before May 23, 2017 an in excess of 60 percent afterwards for CAD. The Veteran’s heart disease is rated under Diagnostic Code 7005 (arteriosclerotic heart disease/coronary artery disease). A 30 percent rating is assigned for a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating contemplates more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of 30 percent to 50 percent. A 100 percent rating is warranted for coronary artery disease resulting in chronic congestive heart failure; or, workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is LVEF of less than 30 percent. According to a VA examination in April 2016, the VA examiner found the Veteran had symptom of dyspnea, fatigue, angina and dizziness with estimated METS greater than 5-10 and left ventricular ejection fraction (LVEF) 56 percent. No congestive heart failure was noted. Here, the Veteran’s LVEF is more than 50 percent, and his workload is greater than seven METS, but not greater than ten METS which would support the assignment of a 10 percent rating. At a VA examination in May 2017, the VA examiner found the Veteran had symptom of dyspnea and fatigue, with estimated METS greater than 3-5 and left ventricular ejection fraction (LVEF) 55 percent. Here, the Veteran’s LVEF is more than 50 percent, and his workload is greater than three METS, but not greater than five METS which would support the assignment of a 60 percent rating. This is the first medical evidence of record showing that the Veteran’s heart condition met the criteria for a 60 percent evaluation, and as such, that is the earliest the 60 percent rating may be assigned. However, the Veteran is not entitled to a 100 percent rating because a 100 percent rating requires LVEF of less than 30 percent, and the Veteran has LVEF of 55-56 percent. There is also no suggestion in the medical evidence that the Veteran has experienced chronic congestive heart failure or that his heart disability has resulted in METS of 3 or less. Accordingly, the schedular criteria for a rating in excess of 10 percent prior to May 23, 2017 and in excess of 60 percent afterward, for CAD have not been met. Therefore, the claim is denied. REASONS FOR REMAND The Board cannot make a fully-informed decision on the issue of tinnitus. The record indicates that a tinnitus Disability Benefits Questionnaire was ordered in January 2015, due to VA error, the Veteran was examined for hearing loss and not tinnitus. The Board notes that a February 2015 VA examiner reviewed the file and submitted an addendum opinion, however she concluded that she could not speculate whether or not the Veteran’s tinnitus is a result of military service. It appears the RO intended to seek clarification, but a rating decision was issued before a clarifying medical opinion of record could be obtained. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the etiology of any tinnitus. The examiner should opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s tinnitus either began during or was otherwise caused by his military service. Why or why not? If the requested opinion cannot be provided without resorting to speculation, it should be explained why. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel