Citation Nr: 1825892 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 17-06 639 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension, including as secondary to the service-connected diabetes mellitus type II. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1958 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the RO in Winston-Salem, North Carolina, which in pertinent part, denied service connection for hypertension and obstructive sleep apnea. The Board has reviewed the electronic files on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. The Veteran is currently diagnosed with hypertension. 2. The evidence of record is at least in relative equipoise as to whether the current diagnosis of hypertension is the result of the service-connected diabetes mellitus, type II. 3. The Veteran is currently diagnosed with obstructive sleep apnea (OSA). 4. The evidence of record does not indicate that the current diagnosis of OSA had its onset in service or that this condition had a causal connection or was associated with the Veteran's active military service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for the establishment of service connection for hypertension as secondary to the service-connected diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 2. The criteria for the establishment of service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires (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). The Veteran is currently diagnosed with hypertension which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 C.F.R. §§ 3.307, 3.309(a). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may 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). A disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310(b), and compensation is payable for that degree of aggravation of a nonservice-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 39 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Hypertension Throughout the course of this appeal, the Veteran has contended that hypertension is the result of the service-connected diabetes mellitus (diabetes). See October 2015 Notice of Disagreement; February 2017 VA Form 9. Initially, the Board finds that the Veteran is currently diagnosed with hypertension. Next, after a review of all the evidence of record, both lay and medical, the Board finds that the evidence demonstrates that the current hypertension is the result of the service-connected diabetes. The Veteran underwent a VA examination in December 2015 for both diabetes and hypertension. The December 2015 VA examination report for diabetes mellitus shows the VA examiner found that it is at least as likely as not that the Veteran's hypertension is due to, and aggravated (permanently worsened beyond its natural progression), by the service-connected diabetes. Similarly, the December 2015 VA examination report for hypertension contains the VA examiner's remark that the current hypertension is likely aggravated by the service-connected diabetes. As there is no evidence or competent medical opinion to the contrary, and resolving reasonable doubt in the Veteran's favor, the Board finds that the current hypertension is caused by, or related to, the service-connected diabetes mellitus, and that service connection for hypertension is warranted as secondary to the service-connected diabetes mellitus. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. Because the Board is granting service connection on a secondary basis, all other theories of entitlement to service connection are rendered moot. Service Connection for Obstructive Sleep Apnea The Veteran contends that sleep apnea had its onset during active service and that he experienced daytime sleepiness prior to discharge from active service. See February 2017 VA Form 9. Initially, the record evidence reflects that the Veteran is currently diagnosed with obstructive sleep apnea. See October 2012 private treatment record. After a review of all the evidence, lay and medical, the record before the Board does not indicate that the current diagnosis of sleep apnea had its onset in service, or otherwise has a causal connection or association with the Veteran's active military service. Service treatment records do not reflect any history, complaints, diagnosis, or treatment for any symptoms of sleep apnea during service. Additionally, the July 1978 service separation examination shows the Veteran's nose, sinuses, mouth and throat, lungs and chest were examined and found to be clinically normal. A June 2012 private treatment record reflects the earliest medical complaint for sleep apnea related symptoms. During the June 2012 private medical visit, the Veteran complained of feeling tired and falling asleep immediately after sitting down. The Veteran reported that he sleeps through the night, but does not feel rested in the morning. At the conclusion of the visit, the June 2012 private provider referred the Veteran for a sleep study. Private treatment records from August 2012 show the Veteran presented for an evaluation for possible sleep-disordered breathing and underwent a sleep study. The Veteran reported that he snores and that it had been going on for about six or seven years and that he had been experiencing increasing tiredness and fatigue. The sleep study revealed moderate sleep disordered breathing, which was diagnosed as obstructive sleep apnea. Based on the foregoing evidence, the record before the Board does not indicate that the current diagnosis of obstructive sleep apnea had its onset during service or that this condition has a causal connection or was associated with the Veteran's active duty service. The Board notes that the contrary opinion of record comes from the Veteran, himself, who maintains that his sleep apnea is of service origin. However, as noted above, his service treatment records, including the July 1978 separation examination, contain no complaint, diagnosis, or treatment for any symptoms of sleep apnea. The Veteran was discharged from active duty in December 1978, and the earliest indication of a diagnosis of sleep apnea was in 2012, decades after his military service. Hence, the Board determines that its conclusion is more in keeping with the record as whole, which does not indicate the Veteran's obstructive sleep apnea has a causal connection or was associated with his military service. Although the Veteran asserts in the October 2015 Notice of Disagreement and February 2017 VA Form 9 that he had sleep apnea symptoms during service, this assertion is at variance with the Veteran's own reported histories during post-service treatment that sleep apnea symptoms had only begun six to seven years prior to being diagnosed with obstructive sleep apnea in 2012. The Board finds that the Veteran's lay assertions made in 2015 and 2017 are inconsistent with the other evidence of record, and declines to assign the assertions any evidentiary weight. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements . . . ."). As such, the Board assigns no probative weight to the Veteran's assertions that his obstructive sleep apnea is of service origin. Accordingly, while the Veteran contends that service connection for sleep apnea is warranted, the evidence of a nexus is limited to his self-reports. In this particular case, the Board considers the causes and manifestations of sleep apnea diagnosed decades after service to be a medical question that requires expertise beyond a lay person's general observation. See Kahana v. Shinseki, 24 Vet. App. 248, 435 (2011). To the extent the Veteran believes that his sleep apnea is due to service, as a lay person, he has not shown to possess any specialized training in the medical field. Thus, the Veteran's opinion as to the origin and cause of his sleep apnea falls outside of the scope of his competency as a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(1). As such, the Veteran's lay statements are not considered probative. Id. As the evidence of record before the Board does not indicate that the current diagnosis of obstructive sleep apnea is related to active service, the Board finds that the weight of the evidence demonstrates that sleep apnea did not have its onset during, and is not otherwise causally related to active service; therefore, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension, as secondary to the service-connected diabetes mellitus type II, is granted. Entitlement to service connection for obstructive sleep apnea is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs