Citation Nr: 18156911 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-60 488 DATE: December 11, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a left-hand condition is denied. Entitlement to service for connection for sleep apnea is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. FINDINGS OF FACT 1. Hypertension was not first manifested on active duty or during the first post-service year, and is not otherwise shown to be related to military service. 2. There is no competent or credible evidence of a current left hand disability or a diagnosis of sleep apnea, nor is there raised any probability of a temporal or causative relationship to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for a left hand disability is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for sleep apnea is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1972 until August 1975. These matters come before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of a Department of Veterans Affairs (VA), Regional Office (RO). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Hypertension is a chronic disease with a one year presumptive period. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Hypertension Service treatment records do not show the onset of chronic elevated blood pressure in service; there is an isolated high reading in April 1972, but subsequent readings were normal. Hypertension was not diagnosed in service, and blood pressures were normal at separation. Private records soon after separation showed non-hypertensive readings. Post-service records indicate a diagnosis of hypertension as of 1992, well after service and long after the presumptive period applicable to hypertension as a chronic disease. He takes medication for control. A VA examiner opined in July 2016 that it was less likely than not that currently diagnosed hypertension was related to service, as blood pressure in service and immediately after was normal. In November 2016, he specified that he had considered the isolated blood pressure in service, but considered it an isolated event not part of a chronic condition, as subsequent readings had returned to normal. While the Veteran believes and has opined that his hypertension is related to service, he is not competent to render such an opinion. He lacks the specialized medical knowledge and training necessary to formulate an etiology opinion based on more than observable cause and effect. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As the sole competent and credible evidence of record is against the claim, service connection for hypertension must be denied. Sleep Apnea, Left Hand Disability The Veteran alleges that he has a left hand disability, marked by weakness and loss of grip, and sleep apnea. However, no medical records show diagnoses or symptoms of such. In fact, VA records include findings that are on their face contrary to such. Musculoskeletal examinations are normal. The Veteran denies neurological problems, and in describing sleep, he reports insomnia only; this renders his initial allegations less than credible. Statements made in conjunction with treatment are generally considered to be more credible and trustworthy than those made in situations where secondary gain may be a factor. This is the basis for the hearsay exception in the Federal Rules of Evidence at Rule 803(4). See McCormick on Evidence, §266, p. 563. While these Rules are not strictly applicable to VA proceedings, they can help inform the analysis of the evidence. Hampton v. Nicholson, 20 Vet. App. 459, 462 n. 1 (2006); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Only the hired private examiner lists the left hand problems and sleep apnea as diagnoses, but then only as part of a reported history and not as indications of medically supported diagnoses. Further, other than the Veteran’s bare allegation of a nexus to service, there is no evidence or indication of a nexus to service. Service treatment records include no findings related to either, and no diagnoses. No qualified medical professional has indicated a nexus to service. In short, there is insufficient competent and credible evidence on which to consider a current disability, any disease or injury in service, or a nexus. In the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no competent and credible evidence to support any element of these claims, entitlement to the benefits sought is not warranted. REASONS FOR REMAND Remand is required with regard to the remaining issues to ensure a complete and accurate record for adjudication. Headaches The Veteran has consistently asserted that his headaches are related to his military service. The Veteran experienced and was treated for headaches during his active service, and current treatment records reflect prescription of medication for headaches. However, the July 2016 VA examiner declined to render a diagnosis, or to therefore render a nexus opinion. The Board finds that a supplemental examination and opinion is necessary as the July 2016 medical failed to consider the lay and treatment evidence of recurrent headaches. Acquired Psychiatric Disability A July 2016 VA examiner has opined that the no currently diagnosed psychiatric disorder is related to service. Instead, he opined that it was related to the Veteran’s post-service history of extensive jail time for drug charges and sexual assault, as well as substance abuse and other unspecified factors. In contrast, private examiner Dr. DJW, who saw the Veteran in May 2015, but whose report was not submitted to VA until December 2016, opined that the acquired psychiatric disorder stemmed from physical problems with his service-connected knee disability. A new VA examination is required for consideration of the secondary service connection claim raised in the private examination and which considers an accurate medical picture. The matters are REMANDED for the following action: 1. Associate with the claims file updated treatment records from the Hampton, Virginia, VA medical center, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record. 2. Schedule the Veteran for a VA mental disorders examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current acquired psychiatric disorders, and for each, must opine as to whether it is at least as likely as not caused or aggravated by service or a service-connected disability. The examiner must specifically comment on the May 2015 opinion of Dr. DJW (received by VA December 9, 2016) that major depressive disorder was related to a service-connected knee disability, and the July 2016 opinion that nonservice-connected factors such as extensive jail time and drug use were responsible. 3. Schedule the Veteran for a VA headaches examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current conditions manifested by chronic recurrent headaches, and for each, must opine as to whether it is at least as likely as not caused or aggravated by service or a service-connected disability. The examiner must discuss reports of in-service headaches as well as lay statements regarding periodic headaches after service. 4. Upon completion of the above, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel