Citation Nr: 18158616 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 13-22 204A DATE: December 17, 2018 ORDER Service connection for sleep apnea, to include as secondary to the service-connected post-traumatic stress disorder (PTSD) is denied. Service connection for ischemic heart disease (claimed as heart failure) as a result of exposure to herbicides is denied. Service connection for hairy cell leukemia and other chronic B-cell leukemias (claimed as blood disorder) as a result of exposure to herbicides is denied. FINDINGS OF FACT 1. The evidence of record does not support a finding that the Veteran has a current diagnosis of ischemic heart disease. 2. The evidence of record does not support a finding that the Veteran has a current diagnosis of hairy cell leukemia or other chronic B-cell leukemias. 3. The Veteran’s sleep apnea is not causally or etiologically related to active service, and is not caused or aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease as a result of exposure to herbicides have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for hairy cell leukemia and other chronic B-cell leukemias as a result of exposure to herbicides have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for sleep apnea, to include as secondary to the service-connected PTSD have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from June 1968 to January 1972, and from August to September 1978. The issues are on appeal from September 2011 and September 2015 rating decisions. The Veteran was scheduled for a Central Office hearing on October 24, 2018. However, the Veteran was deemed a no-show for the hearing and to date the Veteran has not requested that the hearing be rescheduled. As such, the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.704(d). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2017). To establish a right to compensation for a present disability, 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-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connections for B-cell/hairy cell leukemia (leukemias) and ischemic heart disease as a result of exposure to herbicides Service connection may be granted for specific disabilities associated with exposure to herbicide agents, including B-cell/hairy cell leukemia and ischemic heart disease. 38 C.F.R. § 3.309(e). These disabilities will be considered to have been incurred in or aggravated by service despite any lack of evidence of such disease during service. 38 C.F.R. § 3.307(a). This presumption applies to Veterans who served in the Republic of Vietnam during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board of Veterans’ Appeals (Board) must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board notes the Veteran served in the Republic of Vietnam and thus, exposure to herbicides is conceded. Therefore, the Veteran’s record is reviewed for a current diagnosis of B-cell leukemia, hairy cell leukemia, or ischemic heart disease to establish entitlement to service connection for any of these claims. Turning to the evidence, service treatment records are silent regarding leukemias or ischemic heart disease. VA treatment records from August 2003 to July 2015 and private physician records do not show any diagnosis of leukemias or ischemic heart disease. Notably, a July 1999 diagnosis from Holy Cross Hospital showed new onset unstable angina, and ruled out ischemia. A July 2002 record from Kaiser Permanente showed no ischemic changes. In May 2006, the Veteran denied any cardiac issues during a Holy Cross Hospital stay. The Veteran underwent an electrocardiogram (ECG) in February 2008 and the physician opined the ECG could not exclude ischemia. However, a September 2010 ECG showed normal sinus rhythm. Again, no VA medical provider or private physician provided diagnoses involving leukemias or ischemic heart disease. The Veteran was afforded a VA examination for ischemic heart disease in August 2011. The Veteran reported symptoms of dyspnea, fatigue, and dizziness. The examiner discussed the various cardiovascular testing underwent by the Veteran, and noted that there was evidence of cardiac hypertrophy or dilation; but that the Veteran had also been ruled out for acute coronary syndrome or any cardiovascular diagnostic evidence of obstructive coronary artery disease, and no ischemic changes or arrhythmias had ultimately been found. The examiner also noted that the Veteran had no history of taking continuous medication for any diagnosed condition, and that his level of METs was on par with activities such as eating, dressing, taking a shower, and slow walking for one to two blocks. After review of the Veteran’s medical record and upon examination, the examiner opined that the Veteran did not have any diagnosis of ischemic heart disease or congestive heart failure. Based on the evidence above, the Board finds the claims must be denied as the Veteran has no current diagnosis of B-cell, hairy cell leukemia, or ischemic heart disease. In this regard, an initial requirement for a Veteran to qualify for entitlement to compensation is the existence of a disability. 38 U.S.C. § 1110. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain, 21 Vet. App. at 321. Here, there is no competent evidence showing that the Veteran has B-cell leukemia, hairy cell leukemia or ischemic heart disease, or that he has had any of the disorders since he filed his claim for service connection. The Board has reviewed the service treatment records, as well as post-service VA and private treatment records, however, none of these show a diagnosis of leukemias or ischemic heart disease. The Veteran has contended throughout the claim that the he has B-cell leukemia, hairy cell leukemia, and ischemic heart disease. However, as lay people are not trained to diagnose complex disease, the Board finds that the question of whether the Veteran has B-cell leukemia, hairy cell leukemia, or ischemic heart disease is beyond the realm of a layperson’s competence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Further, the August 2011 VA examiner found no ischemic heart disease present nor that there was indication of such in the recent VA or private treatment records. As the August 2011 VA examiner is a medical professional who is qualified to diagnose such a condition as ischemic heart disease, the Board affords more probative weight to the August 2011 VA examination than the Veteran’s lay statements. Entitlement to service connection is limited to claims which have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, as there is no showing of B-cell leukemia, hairy cell leukemia, or ischemic heart disease at the time of filing of the claim or at any time during this appeal, there can be no valid claim. Therefore, the Board finds that service connection for B-cell leukemia, hairy cell leukemia, or ischemic heart disease is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Service connection for sleep apnea, to include as secondary to the service-connected PTSD Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The record shows that the Veteran has current diagnoses for sleep apnea, which he attributes to his service-connected PTSD. Accordingly, the requirements for Wallin elements (1) and (2) have been met. As such, the remaining issue is to determine whether the current disability is related to a service-connected disability. The Board finds that the weight of the competent and credible evidence is against a finding of secondary service connection for the Veteran’s sleep apnea. Turning to the evidence, the Veteran’s service treatment records are silent regarding a sleep disorder, including sleep apnea. Post-service VA treatment and private physician records show complaints of and treatment for sleep apnea. In September 2014, the Veteran underwent a sleep study at the Washington VA Medical Center and was diagnosed with severe obstructive sleep apnea. An etiology opinion was not provided. The Veteran also complained that his PTSD caused sleep disturbance in an April 2015 note. The Board notes that while the Veteran is competent to attest to his belief that his sleep apnea is a result of his service-connected PTSD, the Veteran is not competent to opine as to the etiology of his current diagnosis or make the necessary “nexus” (connection) determination. Moreover, review of the evidence shows that there is no competent evidence that shows medical nexus between the Veteran’s sleep apnea and service-connected PTSD. As the Veteran is shown to have sleep apnea that is a mechanical obstruction of the upper airway during sleep, in the absence of competent rationale for sleep apnea as secondary to PTSD, the Board finds that sleep apnea as secondary to PTSD is not warranted. Turning to another avenue of service connection, the Board finds that sleep apnea was not manifest during service. The Board notes that there is no plausible anatomic explanation that would link the Veteran’s sleep apnea to any in-service injury. Although VA treatment and private physician records show treatment for sleep apnea symptoms, they do not note that there is a nexus between the Veteran’s sleep apnea and any in-service injury. As such, service connection on a direct basis must be denied. In consideration thereof, and absence any competent medical evidence to the contrary, the Board finds service connection for sleep apnea must be denied. See 38 U.S.C.§ 5107; 38 C.F.R. § 3.102. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel