Citation Nr: 20004754 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 19-17 075 DATE: January 21, 2020 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for congestive heart failure is denied. FINDINGS OF FACT 1. The Veteran’s sleep apnea was not shown in service, nor is it otherwise related to service. 2. The Veteran’s hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise related to service. 3. The Veteran’s congestive heart failure was not shown in service or within the applicable presumptive period, nor is it otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for congestive heart failure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1991 to September 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A disability which is proximately due to, or chronically aggravated by, a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. However, if the preponderance of the evidence is against the Veteran, the claim will be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for sleep apnea The Veteran asserts his current sleep apnea is related to service. The Veteran was diagnosed with sleep apnea in January 2016. The diagnosis at that time did not link the current sleep apnea to the Veteran’s period of service over two decades prior. The remaining question is whether the current sleep apnea is related to service. The Veteran’s service treatment records (STRs) do not contain complaints, treatment, or diagnosis for sleep apnea. The STRs note the Veteran was seen in February 1992 with complaints of getting only 5-6 hours of sleep per day, feeling tired in the morning, and falling asleep in class. The Veteran reported exercising twice per week, drinking a lot of soda at night, and denied academic and social problems. The Veteran’s examination was normal, and he was diagnosed with fatigue and prescribed a multivitamin and instructed to get more sleep and to return as needed. There were no other complaints or findings noted during the remainder of the Veteran’s service. No VA examination has been afforded in the present case, but none is necessary. In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). A medical examination is necessary when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence, which indicates that the disability or symptoms may be associated with the claimant’s active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. 38 U.S.C. § 5103A (d); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). While there is evidence of a current sleep apnea disability, other than the Veteran’s assertions his current sleep apnea is related to his diagnosis of acute fatigue in service, there is no evidence which indicates that the current sleep apnea may be associated with service. Thus, no VA examination is necessary in order to decide the claim. The Board has considered the Veteran’s statements, to include his assertions that his current sleep apnea is related to his diagnosis of acute fatigue in service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. After review of the evidence, the Board is unable to attribute the Veteran’s diagnosed sleep apnea to his service. The earliest relevant medical evidence of record indicating the presence of sleep apnea is in 2016, over 20 years after separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no medical opinion of record indicating that the Veteran’s sleep apnea is related to an injury or other event in service. As noted above, the record in this case is negative for any indication, other than the Veteran’s own assertion, that his sleep apnea is related to his service. For the above reasons, the preponderance of the evidence is against the claim and service connection sleep apnea is denied. 38 U.S.C. § 5107 (b). 2. Service connection for hypertension The Veteran asserts his current hypertension is related to service, or alternatively, is secondary to his sleep apnea. The Veteran’s onset of hypertension was noted in 2016 after an attack of congestive heart failure in January 2016. The remaining question is whether the hypertension manifested in service, within one year of service, or is otherwise related thereto. Service treatment records show the Veteran experienced an episode of high blood pressure (154/78) in service during a dental examination in September 1991. The Veteran was referred for evaluation for hypertension, and a treatment record dated November 1991 noted that serial blood pressures were normal, and the Veteran did not have hypertension. There were no other complaints or findings of hypertension noted during the remainder of Veteran’s service. On dental health questionnaires dated September 1991, April 1992, October 1992, and July 1993, the Veteran denied having then or ever having hypertension. The Veteran underwent a Hypertension Disability Benefits Questionnaire in March 2017. The examiner noted the onset of hypertension was in 2016. The Veteran is taking continuous medication for his hypertension. The Veteran’s average blood pressure readings were 152/100. After reviewing the Veteran’s claims file, the March 2017 examiner stated that the Veteran’s current hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran’s STRs show his systolic blood pressure to be raised at dental appointment in September 1991, and the Veteran was referred for serial blood pressure testing which did not reveal any hypertension, and he was cleared with no hypertension. The rest of the STRs also are silent regarding high blood pressures, and the provided medical records after service are silent for hypertension anytime soon after separation. Considering the Veteran had normal blood pressures except one occasion at dental examination and the serial blood pressures were normal, it is less likely than not the Veteran’s hypertension was incurred or caused by illnesses, injuries or events during service. With respect to a nexus between the current disability and in-service event, the only competent medical opinion of record is the March 2017 VA opinion, which weighs against the Veteran’s claim. The only evidence indicating an association between the current hypertension and service are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of hypertension is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay testimony is not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current hypertension had its onset during service does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of hypertension. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board has also considered whether the Veteran is entitled to service connection for hypertension as a “chronic disease.” See 38 C.F.R. § 3.303 (b). Hypertension is included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with hypertension in 2016, over 20 years after his separation from service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with hypertension or any other “chronic” disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. Further, as sleep apnea is not service-connected, the Veteran’s claim for secondary service connection on this basis is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran’s current hypertension and his service. In light of the above, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); Gilbert, supra. 3. Service connection for congestive heart failure The Veteran contends that his congestive heart failure is related to his service, or alternatively, is secondary to his sleep apnea. The record evidence shows the Veteran was seen in August 2016 to establish care and reported a past medical history of congestive heart failure for which he wears a pacemaker. Service treatment records are silent for complaints, treatment, or diagnosis of any heart condition. On dental health questionnaires dated September 1991, April 1992, October 1992, and July 1993, the Veteran denied having then or ever having heart problems or angina, heart murmur, mitral valve prolapse, congenital heart lesions, heart surgery, prosthetic heart valves or pacemaker. The Board concludes that while the Veteran has a diagnosis of congestive heart failure, the preponderance of the evidence is against finding that it began during service, within one year of separation, or is otherwise related to an in-service injury, event, or disease. The Board has considered the Veteran’s statements, to include his assertions that his diagnosed heart condition is related to. As the Veteran is not shown to have medical education or experience, he is a lay person and not competent to opine as to the specific etiology of a condition as these are medically complex issues. See Davidson, supra. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. As above, no VA examination has been afforded in the present case and the Board finds that none is necessary. There is no evidence which indicates that the Veteran’s disability or symptoms may be associated with the Veteran’s military service. See McClendon, supra. Further, as sleep apnea is not service-connected, the Veteran’s claim for secondary service connection on this basis is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the above reasons, the preponderance of the evidence is against the claim; thus, the benefit of the doubt rule does not apply, and service connection for congestive heart failure is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.