Citation Nr: 18154934 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 16-44 012 DATE: December 3, 2018 ORDER Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness related to service in Southwest Asia, is denied. Entitlement to service connection for a heart disability, to include as due to an undiagnosed illness related to service in Southwest Asia, is denied. Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s sleep apnea is etiologically related to his active service. 2. The competent evidence of record does not demonstrate a diagnosis of a heart disability proximate to the claim, or during the appeal period, nor a heart ailment due to an undiagnosed illness related to service in Southwest Asia. 3. Competent probative evidence of record demonstrates hypertension was present in service, and has continued since service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2017). 2. The criteria for entitlement to service connection for a heart disability, to include as due to an undiagnosed illness related to service in Southwest Asia, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2017). 3. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1976 to August 1996, including in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Duty to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015), Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).   Service Connection – Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation during service of a preexisting injury or disease. 38 U.S.C. §§ 1110, 1131. To establish service connection for a disability on a direct-incurrence basis, a veteran 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, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303. A Veteran with qualifying service in Southwest Asia who exhibits disability due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness may meet the requirements for service connection on a presumptive basis, if applicable criteria are met. See 38 C.F.R.§ 3.317. Service Connection – Sleep Apnea The Veteran seeks entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness related to service in Southwest Asia. The Veteran was diagnosed with mild obstructive sleep apnea after a sleep study in September 2015. Therefore, he has a diagnosed current disability. Service treatment records do not contain any reports, symptoms, treatment or diagnoses of sleep apnea or difficulty sleeping. The Veteran denied a history of frequent trouble sleeping at his retirement physical examination in April 1996. The Veteran had a VA examination in March 2015. The Veteran reported that he had not had a diagnostic sleep study, and the VA examiner did not find any documentation in the record of the Veteran having sleep apnea. The examiner stated that there was insufficient evidence to warrant a diagnosis of sleep apnea. The Veteran submitted private medical records of a sleep study performed in September 2015. The physician, Dr. L.S., diagnosed mild obstructive sleep apnea. He stated that the Veteran likely had sleep apnea for “several years” before being confirmed by diagnostic testing. He stated that sleep apnea is a chronic condition, and unless the Veteran had had significant weight gain lately, it is a condition that he had had for years. He did not specify how many years he believed the Veteran had sleep apnea prior to testing, or whether the condition onset in military service. Thereafter, the March 2015 VA examiner provided an addendum opinion. She reviewed the claims file, and opined that it was less likely than not that sleep apnea was incurred in or caused by military service. She reasoned that obstructive sleep apnea is a condition with a clear and specific etiology and diagnosis. The Veteran had risk factors for obstructive sleep apnea, including a body mass index (BMI) of 32, neck circumference of 17.5 [inches], Mallampati IV airway, and a large uvula. It was her medical opinion that the above risk factors were the most likely cause of the Veteran’s sleep apnea, and that it is less likely than not that the Veteran’s diagnosis is related to a specific exposure event during service in Southwest Asia. After careful review, the preponderance of the evidence is against finding that the Veteran’s sleep apnea is etiologically related to military service, to include as due to an undiagnosed illness related to service in Southwest Asia. The March 2015 VA examiner opined that it was less likely than not that the Veteran’s condition was incurred in or caused by military service. She reviewed the claims file, including relevant service treatment and private medical records. She noted that the Veteran had risk factors for sleep apnea, and reasoned that those factors were more likely the cause of the Veteran’s condition. Because the examiner reviewed relevant evidence, and provided persuasive rationale in support of her medical opinion, the Board affords it high probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Dr. L.S. opined that the Veteran likely had sleep apnea for several years prior to testing. However, he did not specify how many years he believed the Veteran’s condition predated the diagnosis, provide evidence for his assertions, or provide an etiological nexus opinion between the Veteran’s diagnosed sleep apnea and military service. Dr. L.S.’s rationale is speculative, and does not express a sufficient degree of certainty required for medical nexus evidence. Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board affords his statements lower probative weight. See D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). The Board has considered the Veteran’s lay statements. The Veteran is competent to report symptoms capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he has not been shown to have the medical expertise required to attribute his current condition to military service, as such requires specialized knowledge, education, and training. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Notably, the Veteran has not alleged that he experienced any sleep-related symptoms during his active military service, and service treatment records do not evince any such complaints, symptoms, treatment, or diagnoses. In sum, the preponderance of the evidence is against the claim for entitlement to service connection for sleep apnea. The benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Service Connection – Heart Disability The Veteran seeks entitlement to service connection for a heart disability, to include as due to an undiagnosed illness related to service in Southwest Asia. His application for service connection was received on July 23, 2014. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran submitted private medical records of treatment for an atrial flutter in 2009. In March 2009, the Veteran had an abnormal electrocardiogram (EKG) and sought further treatment. He was diagnosed with an atrial flutter, and underwent an ablation procedure to correct the condition. In May 2009, the Veteran had a follow-up examination, and the physician remarked that the Veteran is “now in sinus rhythm” and “feels considerably better.” Cardiovascular examination revealed regular heart rate and rhythm, and no rubs or murmurs. An additional EKG in August 2009 revealed concentric left ventricular hypertrophy with normal left ventricular systolic function, and no valvular or structural abnormalities. The Veteran had a VA examination in March 2015. The examiner reviewed the claims file and evaluated the Veteran. The examiner noted that the Veteran was diagnosed with an atrial flutter in April 2009, which was treated and resolved. He reviewed VA treatment records and the electronic claims file, and did not find any evidence of the Veteran having a heart condition. The Veteran established VA primary care in January 2016. The physician’s assessment was negative for cardiovascular symptoms including chest pain, shortness of breath, pedal edema, palpitation, dizziness, or syncope. Examination of the heart revealed regular rate and rhythm, and no gallop or murmurs. The Board concludes that the preponderance of the evidence is against finding that the Veteran has a current heart disability capable of service connection. 38 U.S.C. § 1110. The March 2015 examiner indicated that the Veteran had an atrial flutter in 2009 that was treated and resolved. The examination revealed no current heart disabilities. In January 2016, the Veteran’s heart manifested regular rate and rhythm, no gallops or murmurs, and the physician’s assessment was negative for cardiovascular symptoms. The Board affords such evidence high probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board has considered the Veteran’s lay statements. Layno, 6 Vet. App. at 469. However, he has not been shown to have the medical expertise necessary to be deemed competent to diagnose a heart condition, or connect it to military service. Kahana, 24 Vet. App. at 435. Therefore, such statements are afforded low probative weight. In sum, the preponderance of the evidence does not show that Veteran has a current heart disability proximate to the appeal period. See 38 U.S.C. § 1110; Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000); Degmetich, 104 F.3d at 1332; Brammer, 3 Vet. App. at 225. The benefit of the doubt does not apply, and the claim is denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 58. Service Connection – Hypertension Clinical evidence of record establishes a current diagnosis of hypertension. See March 2015 VA examination report. Service medical records show that the Veteran had treatment for, and a diagnosis of, hypertension during active military service. In December 1992, the Veteran was diagnosed with moderate to significant elevation of blood pressure after a 5-day blood pressure check. It was noted that he had frequent diastolic pressure of greater than 100. The assessment was listed as hypertension. The March 2015 VA examiner opined, in part, that the Veteran’s hypertension is a disease with a clear and specific etiology and diagnosis, and that it is less likely than not related to a specific exposure event in Southwest Asia. However, he did not address entitlement to service connection on a nonpresumptive direct-incurrence basis. See Combee v. Brown, 34 F.3rd 1039, 1045 (Fed. Cir. 1994). As such, the opinion is assigned little probative value.   The record establishes that the Veteran has a current diagnosis of hypertension, the condition was present during active service and shown to be chronic, as the diagnosis was made after multiple blood pressure checks. As such, service connection for hypertension is warranted. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel