Citation Nr: 20050144 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 13-25 031 DATE: July 28, 2020 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for hypertension is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for bilateral leg disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran's low back disability is not etiologically related to his active military service. 2. The Veteran's hypertension is related to active service. 3. The Veteran's sleep apnea is related to active service. 4. The preponderance of the evidence reflects that the Veteran's bilateral leg disability is not etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for hypertension have been met. 38 U.S.C. § 1101, 1110, 1131, 1154; 38 C.F.R. § 3.303, 3.304. 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. § 1101, 1110, 1131, 1154; 38 C.F.R. § 3.303, 3.304. 4. The criteria for service connection for a bilateral leg disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 1965 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs Regional Office (RO) in North Little Rock, Arkansas. In March 2014, the Veteran testified at a hearing via videoconference before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The issues were remanded by the Board in May 2015 and June 2018 for further development. Service Connection 1. Entitlement to service connection for a low back disability The Veteran contends that he has a low back condition related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has a low back condition that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran's a low back condition is related to his military service. In an August 2019 VA, medical examination, the examiner opined that the Veteran’s low back condition is less likely than not related to his military service. Noting the Veteran’s in-service injury, the examiner explained that it was acute in nature. In a September 2019 VA medical opinion, the examiner opined that the Veteran’s low back condition is less likely than not related to his military service. The examiner agreed with the August 2019 examiner that the Veteran’s in-service back injury was acute in nature. The examiner further noted the Veteran’s lack of back complaints post-service while seeking treatment for other conditions. The examiner specifically noted the onset of the Veteran’s current back pain occurring in approximately 2009. Based on the above, the Board finds service connection for low back condition is not warranted. The Board notes that the Veteran may sincerely believe that he has a back condition causally related to active service. However; the most probative clinical etiology opinions with regard to the Veteran's claimed condition is against such a finding. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexity of the claimed condition for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for hypertension The Veteran contends that he has hypertension related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has hypertension that either began during active service or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran has hypertension that is etiologically related to the Veteran's active service. The Veteran had a blood pressure of 133/82 during service as shown on his May 1968 Report of Medical Examination. In an August 2019 VA medical opinion, the Veteran was noted with a diagnosis of hypertension. The examiner opined that the Veteran's current hypertension is at least as likely as not to be related to his active service. The examiner noted that the Veteran had no issues related to the claimed hypertension prior to military service. The examiner continued to conclude that the onset of the Veteran’s hypertension was during service. In light of the Veteran's confirmed in-service incurrence (blood pressure reading), the objective clinical medical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for hypertension and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for hypertension is granted. 3. Entitlement to service connection for sleep apnea The Veteran contends that he has sleep apnea related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has sleep apnea that either began during active service or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran has sleep apnea that is etiologically related to the Veteran's active service. An August 2019 VA medical examination report, the Veteran was noted with a diagnosis of obstructive sleep apnea. The examination report further noted the onset of the Veteran’s sleep apnea in May 1967, as the Veteran’s wife witnessed him stop breathing and taking in short breaths while sleeping. The examiner opined that the Veteran's current sleep apnea is at least as likely as not to be related to his active service. The examiner noted that the Veteran had no issues related to the claimed sleep apnea prior to military service. The examiner continued to conclude that the onset of the Veteran’s sleep apnea was during service. In light of the objective clinical medical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for sleep apnea and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for sleep apnea is granted. 4. Entitlement to service connection for bilateral leg disability The Veteran contends that he has a bilateral leg disability related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has a bilateral leg disability that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran's a bilateral leg disability is related to his military service. An August 2019 VA medical examination report noted the Veteran with sciatica in the bilateral lower extremities. In an August 2019 VA, medical examination, the examiner opined that the Veteran’s claimed bilateral leg condition is less likely than not related to his military service. Noting the Veteran’s in-service injury, the examiner explained that it was acute in nature and there exited no chronicity of care to link it to his military service. Based on the above, the Board finds service connection for a bilateral leg disability is not warranted. The Board notes that the Veteran may sincerely believe that he has a bilateral leg disability condition causally related to active service. However; the most probative clinical etiology opinion with regard to the Veteran's claimed condition is against such a finding. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexity of the claimed condition for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).   The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.