Citation Nr: 18101033 Decision Date: 04/26/18 Archive Date: 04/26/18 DOCKET NO. 14-16 697 DATE: April 26, 2018 ISSUES DECIDED: 3 ISSUES REMANDED: 0 ORDER Service connection for sleep apnea is denied. Service connection for hypertension is denied. Service connection for peripheral vascular disease (PVD) is denied. FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran’s sleep apnea is related to service or a service-connected disability. 2. Hypertension was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the Veteran’s hypertension is related to service or a service-connected disability. 3. The most probative evidence is against a finding that the Veteran’s PVD is related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for establishing entitlement to service connection for PVD not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty June 1964 to May 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in October 2015, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Service Connection Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be presumed for certain diseases if a veteran was exposed to certain herbicide agents, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Sleep apnea, hypertension, and PVD are not included in the list of diseases presumptively related to exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Moreover, while ischemic heart disease is presumptively related to exposure to herbicide agents, hypertension and PVD are expressly excluded from the definition of ischemic heart disease. Id. at Note 2. The record shows that the Veteran served in the Republic of Vietnam during the Vietnam War Era. Therefore, he is presumed to have been exposed to herbicide agents during service. The Board notes that other than a May 1967 separation examination, the Veteran’s service treatment records are not available, and the Veteran was notified of such in September 2013. The Board acknowledges its heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision” when service treatment records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). However, no presumption, either in favor of the claimant or against VA arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18. Moreover, the Veteran is not prejudiced in this instance, as he testified that he did not seek treatment for sleep apnea, hypertension, or PVD during service, and he does not believe that he had any of these claimed conditions during service. Indeed, none of them were noted on his May 1967 separation examination report, and the Veteran’s blood pressure was 114/74 upon his discharge from active duty. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2017) (for VA compensation purposes, hypertension means diastolic blood pressure that is predominantly 90 millimeters of mercury (mm) or greater, and isolated systolic hypertension means systolic blood pressure that is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm). 1. Sleep Apnea The Veteran asserts that his sleep apnea was caused by exposure to Agent Orange, or alternatively, secondary to his service-connected diabetes mellitus. As noted above, sleep apnea is not included in the list of diseases presumptively related to exposure to herbicide agents. Therefore, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Upon review of the record, the Board finds that the probative evidence of record is against a finding that the Veteran’s sleep apnea was incurred in or caused by service or caused or aggravated by service or a service-connected disability. The Veteran underwent a VA examination in September 2013, with supplemental opinions provided in January 2016 and May 2016. It was noted that the Veteran was diagnosed with obstructive sleep apnea in November 2009. The examiner reviewed the evidence of record and opined that the Veteran’s sleep apnea was less likely than not caused by exposure to Agent Orange. In support of this, the examiner indicated that a review of relevant medical literature revealed no general medical consensus or scientific evidence indicating that sleep apnea is caused by herbicide exposure. There is no competent medical opinion to the contrary. With respect to secondary service connection, the examiner reviewed the evidence of record and opined that the Veteran’s sleep apnea was less likely than not caused or aggravated by his service-connected diabetes. In support of this, the examiner explained that sleep apnea is caused by upper airway narrowing, which can be due to factors such as obesity, enlarged tonsils, redundant tissue in the soft palate, or a large tongue blocking the airway while sleeping. It was further noted that a review of the relevant medical literature revealed no evidence that diabetes causes sleep apnea or worsens it beyond its natural progression. There is no competent opinion to the contrary. Although the Veteran believes that his sleep apnea is related to service or his service-connected diabetes, as a lay person, he has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of sleep disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his sleep apnea is not competent medical evidence. In sum, the preponderance of the competent and probative evidence is against the claim, and service connection is denied. 2. Hypertension The Veteran asserts that his hypertension was caused by exposure to Agent Orange, or alternatively, secondary to his service-connected diabetes mellitus. As noted above, hypertension is not included in list of diseases presumptively related to exposure to herbicide agents. Therefore, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Upon review of the record, the Board finds that the probative evidence of record is against a finding that the Veteran’s hypertension was incurred in or caused by service or caused or aggravated by a service-connected disability. The Veteran underwent a VA examination in September 2013, with supplemental opinions provided in January 2016 and May 2016. It was noted that the Veteran reported being diagnosed with hypertension in the 1990’s. The examiner reviewed the evidence of record and opined that the Veteran’s hypertension was less likely than not caused by exposure to Agent Orange. In support of this, the examiner indicated that a review of relevant medical literature revealed no general medical consensus or scientific evidence indicating that hypertension is caused by herbicide exposure. There is no competent medical opinion to the contrary. With respect to secondary service connection, the examiner reviewed the evidence of record and opined that the Veteran’s hypertension was less likely than not caused or aggravated by his service-connected diabetes. In support of this, the examiner explained that he Veteran’s hypertension predated his diabetes and, a review of relevant medical literature revealed no evidence that diabetes worsens hypertension beyond its natural progression. There is no competent opinion to the contrary. The Board acknowledges the Veteran’s May 2014 written statement accompanying his substantive appeal in which he asserted that the VA examiner was incorrect in her assessment that the Veteran’s hypertension predated his diabetes. Specifically, the Veteran asserted that VA treatment records from his initial evaluation in 2008 show that he had poor triglycerides and bad cholesterol, which he believes demonstrates that he had diabetes at the time. However, the Veteran reported being diagnosed with hypertension in the 1990’s, and VA treatment records show that he was diagnosed with diabetes in 2012. Accordingly, the Board finds the VA examiner’s opinion to be adequate for purposes of the present claim, as it involved a review of the Veteran’s pertinent medical history and is supported by a reasoned medical explanation. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Although the Veteran believes that his hypertension is related to service or his service-connected diabetes, as a lay person, he has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. 492 F.3d at 1377. In this regard, the diagnosis and etiology of hypertension are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his hypertension is not competent medical evidence. In sum, the preponderance of the competent and probative evidence is against the claim, and service connection is denied. 3. Peripheral Vascular Disease The Veteran asserts that his PVD was caused by exposure to Agent Orange, or alternatively, secondary to his service-connected diabetes mellitus. As noted above, PVT is not included in list of diseases presumptively related to exposure to herbicide agents. Therefore, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Upon review of the record, the Board finds that the probative evidence of record is against a finding that the Veteran’s PVD was incurred in or caused by service or caused or aggravated by a service-connected disability. The Veteran underwent a VA examination in September 2013, with supplemental opinions provided in January 2016 and May 2016. It was noted that the Veteran reported that his symptoms of PVD began many years ago, sometime in the 2000’s. The examiner opined that the Veteran’s PVD was less likely than not caused by exposure to Agent Orange. In support of this, the examiner indicated that a review of relevant medical literature revealed no general medical consensus or scientific evidence indicating that PVD is caused by herbicide exposure. There is no competent medical opinion to the contrary. With respect to secondary service connection, the examiner reviewed the evidence of record and opined that the Veteran’s PVD was less likely than not caused or aggravated by his service-connected diabetes. In support of this, the examiner explained that the Veteran’s PVD predated his diabetes, and a review of the relevant medical literature revealed no evidence that diabetes worsens PVD beyond its natural progression. There is no competent opinion to the contrary. The Board acknowledges the Veteran’s May 2014 written statement accompanying his substantive appeal in which he asserted that the VA examiner was incorrect in her assessment that the Veteran’s PVD preexisted his diabetes. As noted above, the Veteran claims that VA treatment records from his initial evaluation in 2008 show that he had poor triglycerides and bad cholesterol, which he believes demonstrates that he had diabetes at the time. However, VA treatment records dated as early as 2009 note a history of PVD, and the Veteran was not diagnosed with diabetes until 2012. Accordingly, the Board finds the VA examiner’s opinion to be adequate for purposes of the present claim, as it involved a review of the Veteran’s pertinent medical history and is supported by a reasoned medical explanation. See Barr, 21 Vet. App. at 311. Although the Veteran believes that his PVD is related to service or his service-connected diabetes, as a lay person, he has not shown that she has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1377. In this regard, the diagnosis and etiology of vascular disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his PVD is not competent medical evidence. In sum, the preponderance of the competent and probative evidence is against the claim, and service connection is denied. In reaching the above conclusions on all issues, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is the claims, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56 K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banister, Associate Counsel