Citation Nr: 1819583 Decision Date: 04/02/18 Archive Date: 04/12/18 DOCKET NO. 14-24 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus or herbicide agent exposure. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to January 1972, including in the Republic of Vietnam, for which he was awarded a Purple Heart and the Combat Infantryman Badge. He continued to serve in the Army National Guard through March 1979. This matter comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case in August 2016 for evidentiary development. FINDINGS OF FACT 1. The Veteran's OSA disability is not related to service and is not caused or aggravated by his service-connected diabetes mellitus type II disability. 2. The Veteran's hypertension is not related to service, including exposure to herbicide agent, and is not caused or aggravated by his service-connected diabetes mellitus type II. It did not become manifest to a degree of 10 percent or more within one year after the date of separation. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A. Obstructive sleep apnea (OSA) VA treatment records indicate the Veteran underwent a sleep study in 2008, where he was diagnosed with OSA, showing severe sleep-disordered breathing. The Veteran's service treatment records do not indicate any complaints, diagnoses, or treatments for a sleep-related disability in service. Post-service National Guard treatment records show that in August 1973, March 1974, October 1974, and October 1977 the Veteran reported he was in good or excellent health and indicated he did not have frequent trouble sleeping. The Veteran does not contend that sleep apnea had its onset in service, but that it is secondary to his service-connected diabetes mellitus. At the September 2016 VA medical examination, the Veteran reported that although using a continuous positive airway pressure (CPAP) machine helped with his OSA, he remained tired and slept often during the day. The examiner noted that these complaints may have multiple etiologies, including cognitive decline and significant CAD. The examiner opined the Veteran's OSA disability was less likely incurred in service because the Veteran did not demonstrate symptoms of sleep apnea in service, and that there was "no medical evidence" to support the contention that exposure to herbicides caused sleep apnea. In addition, the examiner opined the Veteran's OSA was less likely due to the Veteran's service-connected diabetes mellitus type II because there was "no medical evidence" that supported the contention that diabetes mellitus type II caused sleep apnea. The record contains no probative evidence to the contrary. Finally, the examiner identified a baseline severity level of the Veteran's OSA, using the findings of the 2008 sleep study. He opined there is no evidence of aggravation beyond this baseline because OSA has been readily controlled with CPAP. Thus, there is no aggravation of OSA by diabetes mellitus type II or any other medical condition. The Board finds these opinions probative, as they are supported by clear conclusions with supporting data, and reasoned medical explanations connecting the two. There is no contradictory medical or lay evidence of record. As there is no probative evidence showing the Veteran's OSA disability was incurred in service or caused or aggravated by service-connected diabetes mellitus, the claim for service connection is denied. B. Hypertension The term "hypertension" means that the diastolic blood pressure is predominantly 90 mm Hg or greater and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. Service treatment records do not indicate any complaints, diagnoses, or treatment for high blood pressure or hypertension in service. At induction the Veteran's blood pressure was 118/80. Post-service National Guard treatment records show blood pressure recordings of 120/60 in August 1973, 114/76 in March 1974, and 118/70 in October 1974. On those dates the Veteran reported he was in good health and indicated he did not have high blood pressure and was on no medications. The evidence does not show, and the Veteran does not contend, that hypertension manifested to a degree of 10 percent within one year of separation from service. The Board finds that hypertension did not have its onset in service or within one year of service. The Veteran does not recall the date of his initial diagnosis, but the July 2011 examiner founded the Veteran's hypertension likely had its onset prior to 2006. VA treatment records indicate the Veteran has been diagnosed and treated for hypertension since at least 2011. Thus, this claim turns on whether there is a nexus between the Veteran's current hypertension and service. The Veteran contends it was caused or aggravated by his service-connected diabetes mellitus. At the July 2011 VA medical examination for diabetes mellitus type II, the examiner noted the Veteran required continuous medication to control his hypertension. The examiner opined the Veteran's hypertension was not a complication of his diabetes mellitus type II because his hypertension predated his diabetes mellitus type II and medical literature did not indicate that hypertension was a complication of diabetes mellitus type II. The examiner further opined the Veteran's hypertension was not worsened or increased because of his diabetes mellitus type II disability. At the September 2016 VA medical examination, the examiner noted the Veteran was unable to provide an accurate history of the onset of his hypertension, and that records indicated the onset of the Veteran's disability was likely 2006. The examiner opined the Veteran's hypertension was less likely than not incurred in service or caused by herbicide exposure because the most likely etiology for his hypertension was a finding of hyperaldosteronism in February 2007. As to herbicide agent exposure, the September 2016 examiner opined: "While there may be an association between herbicide exposure and high blood pressure, to date it has only been found in individuals involved in the actual spraying of the exfoliant (American Journal Int Med 2005 Nov 49(11)). It is not clear that this Veteran had such exposure." As this Veteran served in Vietnam from November 1969 to October 1970, he is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(ii). However, he does not claim to have been involved in actual spraying, and the examiner's conclusion is consistent with the National Academy of Sciences (NAS) Veterans and Agent Orange Updates, which places hypertension in the "limited or suggestive evidence" category. NAS has defined "limited or suggestive evidence of an association" to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." The examiner also opined the Veteran's hypertension was less likely due to his diabetes mellitus type II disability because although diabetes can cause hypertension by damaging the kidneys, the Veteran's medical records did not indicate any renal damage but instead showed normal renal function. "Thus the mechanism by which diabetes causes hypertension would not appear to be present." With regards to aggravation, the examiner noted that the Veteran's hypertension is well-controlled and, since the Veteran did not demonstrate renal damage, it is "impossible to determine" that the Veteran's hypertension was aggravated beyond its natural progression by his diabetes mellitus type II. The Board finds these opinions probative, as they are supported by clear conclusions with supporting data, and reasoned medical explanations connecting the two. The preponderance of the evidence is against finding service connection for hypertension. There is no probative evidence to indicate that the Veteran's hypertension was incurred in service (to include exposure to herbicide agents) diagnosed within the first year after service, or caused or aggravated by his diabetes mellitus type II. The claim for service connection is denied. ORDER Service connection for obstructive sleep apnea is denied. Service connection for hypertension is denied. ____________________________________________ LAURA E. COLLINS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs