Citation Nr: 18123787 Decision Date: 08/03/18 Archive Date: 08/03/18 DOCKET NO. 15-10 613A DATE: August 3, 2018 ORDER Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right eye disorder, to include retinal neovascularization, to include secondary to hypertension is remanded. Entitlement to service connection for a heart disorder, to include congestive heart failure, to include secondary to hypertension is remanded. Entitlement to service connection for a kidney disorder, to include renal insufficiency, to include secondary to hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and major depressive disorder is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran currently has a sleep disorder, to include obstructive sleep apnea that is related to active service or events therein. CONCLUSION OF LAW A sleep disorder, to include obstructive sleep apnea was not incurred during active service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1978 to October 1984. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea The Veteran contends that a sleep disorder, specifically obstructive sleep apnea, began during active-duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, and while he reports a history of tiredness and snoring in service, the preponderance of the most probative evidence weighs against finding that a sleep disorder to include obstructive sleep apnea began during service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the service treatment records reveals no complaints, findings or diagnoses of a sleep disorder to include sleep apnea. In his September 1984 separation medical history, the appellant specifically denied having frequent trouble sleeping. An October 2015 letter from Dr. B.F. indicated that the Veteran was not diagnosed with sleep apnea until February 2013, decades after his separation from service. While the appellant and his wife are competent to report that the Veteran exhibited symptoms of snoring and fatigue since service, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of obstructive sleep apnea. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, in an October 2015 letter, Dr. B.F. stated that reports of snoring in service were not evidence of sleep apnea, and that the reported in-service fatigue was attributable to the Veteran’s rotating watch shifts. While Dr. B.F. did not specifically opine against an in-service etiology of sleep apnea, this medical evidence contradicts the Veteran’s contention that in-service snoring and fatigue evidenced the onset of sleep apnea. While the Veteran and his wife believe that obstructive sleep apnea had its onset in service, they are not competent to provide a nexus opinion in this case. As previously noted, this issue is medically complex. Jandreau, 492 F.3d at 1377 n.4. Consequently, the only competent medical evidence on this question is the October 2015 letter of Dr. B.F. indicating that the Veteran’s reported symptoms were not evidence of sleep apnea in service. Based on the foregoing, there is no competent or credible evidence that a sleep disorder to include obstructive sleep apnea was incurred in service or is related to any event in service. While the Veteran has not been afforded a VA examination regarding this claim, the Board does not find that there is adequate evidence indicating that there may be any relationship between his obstructive sleep apnea and his service. Accordingly, even the low threshold under McLendon has not been met here and VA’s duty to provide a VA examination has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The preponderance of the evidence is against finding that a sleep disorder to include obstructive sleep apnea was incurred in, or is otherwise related to service. Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in [38 U.S.C. § 5107(b)] is not applicable based on pure speculation or remote possibility). The claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. In a June 2016 questionnaire, Dr. J.M. indicated that the Veteran’s hypertension was related to his military service. However, Dr. J.M.’s only rationale in support of that opinion was that the service treatment records documented an elevated blood pressure reading. Remand is required to obtain a medical opinion addressing the etiology of the Veteran’s hypertension which includes a complete rationale. Additionally, the Veteran and his wife reported that he has obtained treatment through VA for his hypertension since 1984. As the earliest VA treatment records currently associated with the electronic file are dated from September 2005, any available earlier records should be obtained.   Entitlement to service connection for right eye, heart and kidney disorders to include secondary to hypertension, are remanded. Because a decision on the remanded issue of entitlement to service connection for hypertension could significantly the issues of entitlement to service connection for right eye, heart and kidney disorders, these issues are inextricably intertwined and a remand of the claims is required. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and major depressive disorder is remanded. In a May 2017 letter, Dr. R.A. reported that the Veteran had been diagnosed with posttraumatic stress disorder on the basis of military sexual trauma. However, Dr. R.A. did not provide a rationale in support that opinion. As such, remand is necessary to obtain a medical opinion addressing the nature and etiology of any acquired psychiatric disorder to include a complete rationale. Additionally, the Veteran’s claims file does not appear to include his complete service personnel records. As they may contain information regarding the Veteran’s reported in-service stressor, they must be obtained on remand. Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records dated from May 2018 to the present as well as any outstanding VA treatment records dated prior to September 23, 2005. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Obtain the Veteran’s complete service personnel records. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Ask the Veteran to complete a VA Form 21-4142 for any outstanding relevant records from Grady Memorial Hospital, to include any records pertaining to treatment for hypertension in 1984. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 4. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hypertension. The examiner must opine whether any diagnosed hypertension is at least as likely as not related to an in-service injury or disease, including elevated blood pressure readings in service on July 7, 1982, August 6, 1982, and July 19, 1984. The examiner must discuss the June 2016 opinion of Dr. J.M. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must 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. 5. If, and only if medical evidence indicates that the Veteran’s hypertension is at least as likely as not related to service, then the appellant must be provided examinations by appropriate clinicians to determine the nature and etiology of any right eye, heart and kidney disorders. The examiners must opine whether any right eye, heart and kidney disorder is at least as likely as not (1) proximately due to hypertension, or (2) aggravated beyond its natural progression by hypertension. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must 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. 6. After completing steps one through three, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder. If the Veteran is diagnosed with posttraumatic stress disorder, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner must opine whether the evidence of record, including the appellant’s lay statements, statements made by his wife, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service. If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any posttraumatic stress disorder is at least as likely as not related to the in-service personal assault. If any other acquired psychiatric disorder is diagnosed, for each such diagnosed disorder the examiner must opine whether it is at least as likely as not that the disorder was incurred in or related to service to include due to the reported in-service sexual assault. In offering any opinion regarding the etiology of any diagnosed psychiatric disorder the examiner must discuss the May 2017 opinion of Dr. R.A. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must 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. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel