Citation Nr: 20029655 Decision Date: 04/28/20 Archive Date: 04/28/20 DOCKET NO. 16-24 113 DATE: April 28, 2020 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that sleep apnea is related to or had its onset in service, and against a finding that it is caused or aggravated by a service-connected disease or injury. 2. The preponderance of the evidence is against a finding that hypertension is related to or had its onset in service, or that hypertension manifested within a year of separation from service. CONCLUSIONS OF LAW 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to October 1991. This matter came to the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for sleep apnea, hypertension, bilateral knee condition, and back condition. The Veteran disagreed with the RO’s determination, and a Statement of the Case was issued in December 2015 addressing the matter. The Veteran timely appealed. In an April 2016 rating decision, the RO granted service connection for left knee strain and right knee strain and assigned initial 10 percent ratings effective February 1, 2010. The RO granted service connection for right knee instability and assigned an initial 10 percent rating effective October 5, 2015. The RO also granted service connection for lumbosacral strain and assigned a 10 percent rating effective February 1, 2010. The grant of service connection for left knee strain, right knee strain, and right knee instability, and lumbosacral strain constitutes a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The record currently available to the Board contains no indication that the Veteran initiated an appeal with the initial ratings or effective dates assigned. Thus, those matters are not in appellate status At his request, the Veteran was scheduled for a travel Board hearing to be held in February 2019. However, the Veteran failed to report for the hearing, and neither furnished an explanation for his failure to report, nor requested a postponement or another hearing. As such, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). 1. Sleep Apnea The Veteran contends his sleep apnea is due to neurological blackouts in service from alcohol use. The Veteran’s service treatment records (STRs) are negative of complaints, treatment, or diagnosis of sleep apnea. Post-service treatment records similarly do not reflect that sleep apnea is related to or may be associated with his active duty service. VA clinical records dated in 2010 reflects a diagnosis of sleep apnea. However, the record does not contain competent evidence indicating the Veteran has sleep apnea disability that is related to or may be associated with service. To the extent that the Veteran’s lay statement suggest such a relationship, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). In this regard, the Veteran has not been afforded a VA examination in connection with this disability. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, there is no evidence indicating that the Veteran’s sleep apnea may be associated with his blackouts in service other than conclusory generalized lay statements, which are not enough to warrant a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). As to secondary connection, in order for a disability to be service connected on a secondary basis, the disability must be either caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a)(b) (service connection warranted for disability proximately due, to the result of, or aggravated by an already service-connected disease or injury). In this case, the Veteran is not in receipt of service connection for neurological blackouts. Entitlement to service connection for sleep apnea secondary to neurological blackouts is therefore not warranted as a matter of law. For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for sleep apnea on a direct or secondary basis. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Hypertension The STRs are negative of complaints, treatment, or diagnosis of hypertension. There are no high blood pressure readings in the STRs, and an April 1992 Navy examination shortly after service contains a normal blood pressure reading of 126/84. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (defining hypertension as diastolic blood pressure as predominantly 90mm. or greater, and isolated systolic hypertension as systolic blood pressure predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm). A January 2010 VA clinical record shows a diagnosis of hypertension. However, there is no competent evidence indicating that the Veteran’s hypertension disability is related to or may be associated with service. To the extent that the Veteran’s lay statement suggest such a relationship, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). In addition, there is no evidence that hypertension manifested in service or within the one-year presumptive period for chronic diseases. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In this regard, the Veteran has not been afforded a VA examination in connection with the hypertension disability. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, there is no evidence indicating that the Veteran’s hypertension may be associated with his blackouts in service other than conclusory generalized lay statements, which are not enough to warrant a VA examination. Waters, 601 F.3d at 1278-79. For the foregoing reasons, the preponderance of the evidence is against a finding that hypertension is related to or had its onset in service or manifested within a year following service. The benefit of the doubt doctrine is therefore not for application and the claim muse be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.