Citation Nr: 18156186 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-21 583 DATE: December 11, 2018 ORDER Service connection for sleep apnea is denied. Service connection for coronary artery disease is denied. Service connection for hypertension is denied. Service connection for depression with psychotic features is granted. Basic eligibility to non-service-connected disability pension benefits is granted. 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 Veteran’s coronary artery disease and hypertension did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the preponderance of the evidence is against finding that these disabilities are otherwise related to an in-service injury, event, or disease. 3. The Veteran’s psychiatric disability, currently diagnosed as depression with psychotic features, began during active service. 4. The Veteran had service during the Vietnam era, and his psychiatric disability causes him to be unable to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, coronary artery disease and hypertension are not met. 38 U.S.C. §§ 1110, 1111, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for service connection for depression with psychotic features are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for basic eligibility for non-service-connected disability pension benefits are met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.6. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from September 1972 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and testified at a Board video-conference hearing held before the undersigned Veterans Law Judge in May 2017. A transcript of this hearing is associated with the claims file. 1. Entitlement to service connection for sleep apnea. In June 2012, the Veteran filed an application for service connection for sleep apnea claiming his sleep apnea began in 1974 and was treated at Womack Hospital at Fort Bragg, North Carolina. The Veteran has not provided any further contentions or information relating to this aspect of the claim. 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, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). While the Veteran is competent to report when he was diagnosed with sleep apnea and where he received treatment for it, his report of onset and treatment is not credible due to inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this regard, his service treatment records are silent for complaints, treatment or diagnosis of sleep apnea, or symptoms related thereto, in contradiction to the Veteran’s June 2012 statement that his sleep apnea had its onset and was treated during service in 1974. Furthermore, the earliest evidence of a diagnosis of sleep apnea provided by the Veteran is an October 2003 private polysomnography report showing a diagnosis of obstructive sleep apnea. Consequently, the Board finds that the absence of a complaints, treatment, or diagnosis of sleep apnea in the service treatment records or of persistent symptoms of such disorders at separation, along with the first evidence being many years later, tends to weigh strongly against the assertion that the Veteran’s sleep apnea was incurred during his active military service. The Board notes that a factor for consider is that the absence of medical treatment for the claimed condition for many years after service may weigh against service incurrence. Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). The Veteran himself has not presented any evidence to the contrary. 38 U.S.C. § 5107(a). The filing of a claim and the Veteran’s bare assertion that his sleep apnea is related to his military service standing alone is insufficient to trigger VA’s duty to assist in developing his claim, especially the duty to obtain an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). 2. Entitlement to service connection for coronary artery disease and hypertension. In June 2012, the Veteran filed an application for service connection for a heart condition (3 by-pass surgery) and hypertension claiming these conditions began in 1974 and were treated at Womack Hospital at Fort Bragg, North Carolina. The Veteran has not provided any further contentions or information relating to his claim for hypertension. As for his claim for a heart condition, the Veteran testified at his Board hearing that he had gained weight as a result of having quit smoking and began to having shortness of breath on exertion so he went to the doctor and they did a work up that resulted in a diagnosis of coronary artery disease and him having surgery. See May 2017 Board hearing transcript, p. 11. 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; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether he has a chronic disease that is otherwise related to an injury, event or disease incurred during service. The Board concludes that, while the Veteran has current diagnoses of coronary artery disease and hypertension, which are chronic diseases under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), they neither were chronic in service nor manifested to a compensable degree within service or the presumptive period after service. Moreover, a continuity of symptomatology since service is not established. Finally, the preponderance of the evidence is against finding that the Veteran’s coronary artery disease and hypertension are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). The service treatment records are silent for any complaints, treatment or diagnosis of coronary artery disease or hypertension. On entrance examination in September 1972, his heart was clinically evaluated as normal and his blood pressure was 136/74. The Board acknowledges that an emergency department note from July 1974 relating to the Veteran’s treatment for mental health and/or substance abuse issues in service shows his blood pressure was 156/94 at the time. However, there is no evidence that his blood pressure persisted to be elevated or he was treated for any chronic condition related to his blood pressure at that time as the Discharge Note from September 1974 shows his hospital course was uneventful, no medications for blood pressure were prescribed on discharge and no secondary diagnosis of hypertension or high blood pressure was given. The earliest diagnosis of hypertension seen in the post-service private treatment records is in a November 2004 private treatment note (listed in the Past Medical History) although prior records back to October 2003 show he was prescribed Benicor, which is the antihypertensive medication the Veteran was prescribed for his hypertension. The Board acknowledges that the onset of the Veteran’s hypertension is not known as the Veteran has not provided information or medical records showing his date of the initial diagnosis. As for the Veteran’s claimed heart condition, the medical evidence shows he was diagnosed with coronary artery disease in June 2006 after he underwent a cardiac work ordered by his private primary care physician because he complained of having chest pain and shortness of breath on exertion for a couple weeks in May 2006. Therefore, the available evidence shows that the Veteran was diagnosed to have coronary artery disease and hypertension decades after his separation from service and decades outside of the applicable presumptive period. Moreover, the Veteran has not submitted any evidence, to include a lay statement, to show that he was diagnosed to have coronary artery disease or hypertension, or that he experienced symptoms related thereto, in service and/or during the presumptive period and that he has had symptoms thereof consistently since then. His testimony regarding his heart condition at the Board hearing combined with what is shown in his treatment records indicates that he quit smoking in 1993 and he neither complained of nor was treated for symptoms of CAD until 2006. The Veteran has not provided any further lay or medical evidence to support a finding that his coronary artery disease and hypertension either manifested to a compensable degree within the presumptive period or that he has had a continuity of symptomatology of coronary artery disease and hypertension since service. 38 C.F.R. § 5107(a). Finally, as to the question of direct service connection, the service treatment records are silent for any complaints, treatment or diagnosis of coronary artery disease or hypertension. As stated above, the Board acknowledges that the emergency department note from July 1974 shows the Veteran’s blood pressure was 156/94 at the time, but does not find evidence that he had a chronic condition during service as the single reading is not sufficient to establish chronicity. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Rather the earliest medical evidence of record indicating the Veteran has hypertension is from October 2003. In addition, the earliest medical evidence of a diagnosis of coronary artery disease is from June 2006. Therefore, there are decades between the Veteran’s discharge from service and when the evidence shows the Veteran is diagnosed to have hypertension and coronary artery disease. There is nothing in the post-service medical evidence to indicate that these conditions may be related to the Veteran’s service. The Veteran himself has not set forth any specific contentions as to how his coronary artery disease and hypertension are related to his military service. At most, he gave vague testimony at his Board hearing regarding his heart condition begin the result of his having gained weight after he quit smoking. Insofar as the Veteran may be contending that his coronary artery disease is the result of smoking tobacco products, such a theory of entitlement is not prevailing as the law prohibits service connection for any disability or death resulting from injury or disability attributable to the Veteran’s use of tobacco products during service. 38 C.F.R. § 3.300(a). Consequently, the Board finds that the absence of a diagnosis of coronary artery disease and hypertension in the service treatment records or of persistent symptoms of such disorders at separation, along with the first evidence of such conditions being decades later, tends to disprove the assertion that the Veteran’s coronary artery disease and hypertension were incurred during his active military service. Service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service. Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). The Veteran has not presented any evidence to the contrary, not even his own lay statement. His bare assertion that he has a heart condition and hypertension that are related to his military service standing alone is insufficient to trigger VA’s duty to assist in developing his claim, especially the duty to obtain an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Indeed, there is no evidence showing an indication of a possible relationship to service to trigger VA’s duty to assist. While the Veteran may believe his coronary artery disease and hypertension are related to his military service, he is not competent to provide a nexus opinion in this case as this issue is also medically complex because it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body and/or the ability to interpret complicated diagnostic medical testing, to include of the cardiovascular system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Significantly, the Veteran has not provided any statements to explain why he believes his coronary artery disease and hypertension are related to his military service. Consequently, the Board gives more probative weight to the competent medical evidence that fails to demonstrate an onset during service or for decades after service. 3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, major depression and nervous condition. The Veteran contends that he has a current psychiatric disorder, claimed as nervous condition/paranoia, anxiety and major depression, had its onset in service as he had a mental breakdown in the last three months of his service and he was hospitalized in the psychiatric ward for six to eight weeks at Womack Army Hospital at Fort Bragg, North Carolina. He relates the mental breakdown was the result of being pressured and harassed by his military leaders to re-enlist when he did not want to and being given every bad duty or guard duty because of his refusal to re-enlist. See April 2015 VA Form 21-4138; May 2015 Board hearing transcript, pp. 3-5. The Veteran’s service treatment records confirm that he was hospitalized at the Womack Army Hospital from July 13, 1974 to September 5, 1974 and was diagnosed with paranoid schizophrenia. The Board concludes that the Veteran has a current diagnosis of depression with psychotic features that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A July 2017 private psychological evaluation report shows the Veteran has a current diagnosis of depression with psychotic features, and the examiner opined that the Veteran’s diagnosed psychiatric disorder is clearly connected to his military service by virtue of it having begun while he was in service. He further opined that it is likely that the Veteran experienced prodromal symptoms (low mood, fears about others and intense need to isolate and flee) prior to his full psychotic break, which may have been somewhat fueled although not directly caused by, his marijuana use at the time and, although the Veteran is no longer frankly psychotic, he displays considerable residual and chronic psychotic symptoms as part of his untreated serious depression. The Board acknowledges that the Veteran underwent a VA examination in July 2013 as a result of which no diagnosis of a mental health disorder was rendered. After comparing this evidence with the July 2017 private psychological evaluation submitted by the Veteran, the Board finds that both reports are just as competent, credible and probative as they both are based upon a review of the Veteran’s record and an interview with the Veteran. Furthermore, although no actual mental health diagnosis is seen in the Veteran’s private treatment records, he was prescribed the antidepressant medication, Desyrel, in November 2004 until May 2006 by his private physician. Therefore, the evidence is in equipoise as to whether the Veteran has a current disability. Resolving reasonable doubt in the Veteran’s favor, the Board finds that he has a current psychiatric disability diagnosed as depression with psychotic features as diagnosed by the July 2017 private psychologist. 38 C.F.R. § 3.102. 4. Entitlement to basic eligibility to non-service-connected disability pension benefits. VA non-service-connected pension benefits are payable to a veteran who is permanently and totally disabled from nonservice-connected disability or disabilities, which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements of that section if he served in active military, naval, or air service: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a)(3). As the Veteran served from September 1972 to September 1974, he has the requisite wartime service during the Vietnam Era. Furthermore, the July 2017 private psychological evaluation report shows the examiner opined that the Veteran is totally unemployable due to his psychiatric disability. The Board finds, therefore, that the Veteran is unable to follow a substantially gainful occupation as a result of his psychiatric disability. See 38 C.F.R. §§ 3.340, 3.342(a). Consequently, the Veteran also meets the requirement that he be permanently and totally disabled. Therefore, basic eligibility to non-service-connected pension benefits is met. However, in order for the Veteran to be entitled to payment of non-service-connected disability pension benefits, he must still meet the income-net worth requirements. The Board makes no intimation as to whether those requirements are met. The agency of original jurisdiction (AOJ) must make that determination after obtaining the appropriate information from the Veteran if not already of record. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow