Citation Nr: 1808787	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-15 379	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


	
THE ISSUES

1. Entitlement to service connection for sleep apnea.

2. Entitlement to service connection for hypertension.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

D.M. Casula, Counsel


INTRODUCTION

The Veteran had active service from May 1969 to May 1971, and from June 2004 to June 2005.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2011 rating decision of Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for hypertension, and an August 2011 RO rating decision which denied service connection for sleep apnea.

The issue of service connection for sleep apnea is addressed in the REMAND portion below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

There is competent evidence of hypertension within one year of the Veteran's separation from active service.


CONCLUSION OF LAW

The criteria for service connection for hypertension have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

II. Factual Background and Analysis

Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  In order establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004; see also Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Hypertension is a chronic disability and a nexus to service is presumed if it manifests to a compensable degree within a year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater or systolic blood pressure is predominantly 160 or more.  38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, n.1.

For chronic disabilities listed under 38 C.F.R. § 3.309 (a), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303 (b).  Hypertension is a chronic disability recognized under 38 C.F.R. § 3.309 (a) and the continuity of symptomatology provisions are applicable. 

Under 38 C.F.R. § 3.303 (b), continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Hickson v. West, supra (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the Veteran.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

Service treatment records show no report or finding of hypertension or high blood pressure reading.  Blood pressure readings included 123/85 in June 2004, and 129/87 in May 2005.

Post-service VA treatment records show that in June 2005, the Veteran had a blood pressure reading of 130/80.  In December 2005 (within one year of his discharge from military service), the Veteran had a blood pressure reading of 130/90, the assessment included hypertension, and he was put on HCTZ (Hydrochlorothiazide) medication to control his blood pressure.  In April 2006, it was noted that his hypertension was under good control and he was to continue taking HCTZ.  In June 2006, it was noted that his hypertension was "good but could be better" and his medication was increased.  Resolving reasonable doubt in favor of the Veteran, there is competent evidence of hypertension within one year of his separation from his second period of active service.  38 U.S.C. §§ 1112, 5107 (b); 38 C.F.R. §§ 3.102, 3.307, 3.309.  

The Board acknowledges that hypertension was not shown to a compensable degree within one year of service.  Cf. Diagnostic Code 7101 (providing compensable ratings for hypertension when diastolic reading are predominantly 100 or more; systolic readings are predominantly 160 or more; or there is a history of diastolic readings predominantly of 100 or more that requires continuous medication for control).  The record does, however, show a pattern of elevated blood pressure readings beginning in service.  The record also shows that after the initial finding of hypertension in December 2005, and continuing to the present, the Veteran's blood pressure is within normal limits, but only with the use of medication.  Resolving all doubt in the Veteran's favor, the record supports a finding that he has current hypertension that began in service.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 .

Based on the foregoing, entitlement to service connection for hypertension is warranted.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 


ORDER

Service connection for hypertension is granted.


REMAND

The Veteran contends his sleep apnea had an onset during his second period of active service, and also contends he has had sleep problems ever since service.  In a statement dated in October 2011, he reported that he was ordered to active duty from 2004 to 2005 when he started to have problems sleeping and snoring out loud.  He reported that same of the other soldiers in his unit tried to wake him up because of the snoring.  He also reported that sometimes he would gasp for air and sometimes he was tired the next day.  He indicated that when he came home from active duty, his sleep apnea got worse and he was now being treated at the VA sleep clinic and also now sleep with a machine to help with his breathing. 

Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a).  In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service treatment records show no report or finding of sleep apnea.  On a post-deployment health assessment dated in May 2005, the Veteran responded "no" to the question of whether he still felt tired after sleeping.  

Post-service VA treatment records show that in January 2006 the Veteran reported feeling scared, nervous, and not sleeping adequately.  In December 2006, it was noted that he had been told by a family member that he snores and stopped breathing at times when sleeping.  The Veteran felt he was not having enough sleep at night.

VA treatment records showed that in February 2011, the Veteran was seen for a sleep disorder consultation, it was noted that he slept most of the night, snored loudly, and had severe obstructive sleep apnea that was diagnosed in a sleep study.  A CPAP (continuous airway pressure) machine was prescribed for him to use at night.  In a letter dated in September 2011, a VA physician indicated that the Veteran was a patient in the sleep disorders clinic, and was currently being treated for severe sleep apnea, which he was diagnosed with by a nocturnal polysomnogram in January 2011.  Thus, he has a current disability of sleep apnea. 

VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The requirement that the evidence "indicates" that the veteran's disability "may" be associated with his service is a low threshold. Id.  Considering the record on appeal, a VA examination/opinion is needed to address whether the Veteran's sleep apnea may be related to service.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination to determine whether his sleep apnea had an onset in or is otherwise related to active service.  The claims folder must be made available to the examiner for review.  The examiner should be asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that a current sleep disorder had its onset in service or is otherwise related to service.  The examiner should be advised that the Veteran is competent to report he has had sleep problems since active service.  In offering any opinion(s), the examiner must acknowledge the competent lay evidence regarding the Veteran's symptoms he has experienced since service.  The examiner must explain the rationale for any opinion given, and if unable to provide an opinion without resorting to speculation, the examiner should so state and explain why this is so.

2. Thereafter, the issue on appeal should be readjudicated.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his attorney should be provided with a Supplemental Statement of the Case (SSOC) which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs