Citation Nr: 18161005 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-12 831 DATE: December 28, 2018 ORDER Entitlement to service connection for a chronic respiratory disorder (claimed as bronchitis), other than sleep apnea, is denied. Entitlement to a compensable rating for hypertension is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for valvular heart disease is remanded. FINDINGS OF FACT 1. The Veteran has not had a chronic respiratory disorder, other than sleep apnea, during the appeal period. 2. At no time during the appeal period did the Veteran’s diastolic blood pressure meet or exceed 100 or his systolic blood pressure reading meet or exceed 160. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic respiratory disorder, other than sleep apnea, are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for a compensable for hypertension are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321(b), 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1987 to September 1993, from June 2001 to December 2001, from February 2003 to July 2003, and from July 2004 to August 2005, with service in the Persian Gulf. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Service Connection Service connection may be established for 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, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). No Current Respiratory Disorder The Board finds that service connection for a respiratory disorder other than sleep apnea (claimed as bronchitis) is not warranted because the most probative evidence of record shows that the Veteran has not suffered a chronic disabling respiratory disorder during the appeal period for which compensation benefits can be granted. In order to be considered for service connection, a claimant must first have a current disability. See 38 U.S.C. § 1110, 1131; Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term “disability” refers to a functional impairment that reduces earning capacity. See Saunders, 886 F.3d at 1363. To establish a disability, the claimant’s symptoms must result in “the level of a functional impairment of earning capacity.” Id. at 1367-68 (noting that the policy underlying veterans’ compensation is to compensate veterans whose ability to earn a living is impaired as a result of their military service). Service connection cannot be granted for injuries or diseases that are acute and transitory in nature, and do not result in residual functional impairment, because such injuries or diseases by definition would not reduce earning capacity. Here, the evidence does not show that the Veteran has suffered from a respiratory disorder resulting in functional impairment that reduces earning capacity during the appeal period. The Veteran underwent a VA examination in November 2012. After examining the Veteran and reviewing the pertinent medical records and lay statements, the examiner found no current respiratory diagnosis and opined that the Veteran had never been diagnosed with any chronic respiratory conditions other than sleep apnea. The examiner noted that the Veteran did have one episode of acute infectious bronchitis while on active duty in February 2005; however, this condition resolved without residuals. The Board finds the examiner’s opinion highly probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). VA treatment records since the November 2012 VA examination show that the Veteran reported dyspnea while climbing stairs and was found to have “markedly low lung volumes” on x-rays taken of his ribs to rule out a suspected rib fracture. However, a work-up by the Veteran’s primary care physician showed no additional evidence of a respiratory disorder. See July 2016 VA Treatment Records. The Veteran’s July 2016 chest x-ray and pulmonary function tests were normal and no chronic respiratory disorder was diagnosed. See July 2016 VA Treatment Records. Significantly, the Veteran has not submitted any lay statement concerning the respiratory symptoms he has experienced during the appeal period (other than sleep apnea symptoms) and has not identified any functional impairment he experiences due to respiratory symptoms. Thus, entitlement to service connection for a respiratory disorder other than sleep apnea is not warranted because the Veteran does not have any functional impairment to support a finding that he has suffered from a respiratory disability during the appeal period. Increased Rating Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155 (2012). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Hypertension Service connection was granted for hypertension in the March 2013 rating decision, which assigned an initial noncompensable disability rating, effective May 14, 2012, under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7101. Diagnostic Code 7101 provides a minimally compensable, 10 percent, rating where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more requiring continuous medication for control. Hypertension with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated at 20 percent disabling. Diastolic pressure predominantly measured at 120 or more is rated at 40 percent disabling, and diastolic pressure predominantly 130 or more is rated at 60 percent disabling. The Veteran received a VA examination in July 2012 and the examiner indicated that he did not have a history of diastolic blood pressure elevation to predominantly 100 or more. Upon examination, his blood pressure readings were 122/88, 116/88, and 188/90. The examiner further noted that the Veteran had been on some form of antihypertensive medication continuously since January 1994. The Veteran received another VA examination in January 2016, and the examiner again noted that his hypertension was well controlled with medication. He did not, however, have a history of diastolic blood pressure elevation to predominantly 100 or more. Upon examination, the Veteran’s blood pressure readings were 132/80, 129/76, and 128/80. Based on the evidence of record, the Veteran’s claim must be denied. Each recorded blood pressure reading of record has shown diastolic pressure under 100 and systolic pressure under 160. Furthermore, while the Veteran requires continuous medication for his disability, he does not have a history of diastolic pressure predominantly 100 or more. Therefore, the Board finds that the evidence of record does not demonstrate that the Veteran’s hypertension disability manifested to a compensable degree at any time during the appeal period REASONS FOR REMAND 1. Sleep Apnea The Veteran’s medical records establish a diagnosis of sleep apnea. Additionally, the Veteran reports that his sleep apnea symptoms began during service. As such, there is an indication that the disability may be related to service, and the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). 2. Valvular Heart Disease The Veteran received a VA examination in November 2012 and was noted to have a diagnosis of valvular heart disease. The examiner noted that the mild tricuspid valve regurgitation found on a July 2009 echocardiogram was not a significant enough amount of valvular heart disease to account for any clinical symptoms at all. However, the mild atrial enlargement on the cardiogram was most likely due to sleep apnea. The examiner concluded that the Veteran did not have any diagnosed heart conditions during his periods of active duty, and therefore any current heart conditions were not related to service. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, this claim must be remanded for a new examination. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal. 2. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his sleep apnea and any heart disorder found to be present during the appeal period. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed sleep apnea and any heart disorder found had its onset in service or is related to service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. If the examiner determines that the absence of complaints or treatment in the medical records is medically significant, the examiner should explain that significance. If any opinion requested cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel