Citation Nr: 21000448 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-19 539A DATE: January 5, 2021 ORDER Entitlement to service connection for a heart condition, to include coronary artery disease is granted. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for testicular cancer is denied. FINDINGS OF FACT 1. The Veteran had active duty service in the Republic of Vietnam between January 9, 1962, and May 7, 1975. 2. Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in relative equipoise that the Veteran has a diagnosis of ischemic heart disease during the period on appeal. 3. The preponderance of the evidence is against a finding that sleep apnea was caused by or incurred in service. 4. The preponderance of the evidence is against a finding that testicular cancer was caused by or incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart condition, to include coronary artery disease have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2019). 3. The criteria for entitlement to service connection for testicular cancer have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1968 to December 1969, to include service in the Republic of Vietnam. This case comes on appeal of an August 2013 rating decision. In April 2019, the Veteran testified before the Board at a videoconference hearing. This case was previously before the Board in August 2019. At that time, the Board remanded the issues below, as well as the issue of entitlement to service connection for gastroesophageal reflux disease (GERD). Subsequent to the Board’s remand, in September 2020, the agency of original jurisdiction (AOJ) issued a rating decision granting service connection for GERD, effective the date the Veteran filed his claim. Accordingly, that issue is considered granted in full and is no longer before the Board. As an additional preliminary matter, the Board notes that the Veteran filed the VA Form 9 to perfect his appeal to the Board in May 2016. Although the Veteran specifically listed the issues of GERD, testicular cancer, ischemic heart disease, and sleep apnea on that Form 9, he also checked the box indicating that he wanted to appeal all of the issues listed on the statement of the case (SOC). The AOJ had issued the SOC addressing those issues on April 18, 2016. However, the AOJ had also issued a SOC addressing the issues of entitlement service connection for numbness of the left and right feet on March 24, 2016. Thus, the Veteran submitted his Form 9 within a timely window to appeal the issues adjudicated in both SOCs. The Board wishes to make clear however that it does not have jurisdiction over the issues of entitlement to service connection for disabilities manifesting in numbness of the left and right feet, as the AOJ had already granted the benefits sought in a prior October 2014 rating decision. Indeed, the AOJ’s issuance of the March 2016 SOC addressing the previously-granted claims was in error. More specifically, the Board observes that the Veteran filed a claim of entitlement to service connection for diabetes along with numbness in his toes in November 2013. In a September 2014 rating decision, the AOJ granted entitlement to service connection for diabetes but denied entitlement to service connection for numbness in the toes of the right and left feet, to include as secondary to diabetes. The Veteran then underwent a September 2014 VA diabetes examination—after the issuance of the September 2014 rating decision—at which time the Veteran specifically complained of numbness of the toes and feet. Based on the examination and the Veteran’s description of symptoms, the examiner diagnosed diabetic peripheral neuropathy of the bilateral lower extremities. Based on the results of the September 2014 VA diabetes examination, on October 6, 2014, the AOJ issued a rating decision granting the Veteran’s claims of entitlement to service connection for diabetic neuropathy of the right and left lower extremities, effective the date of his original November 2013 claim. Coincidentally, on the same day the AOJ issued this favorable rating decision, VA received the Veteran’s notice of disagreement with the prior September 2014 rating decision, specifically appealing the issues of entitlement to service connection for neuropathy of both feet, as secondary to diabetes. It appears that the AOJ continued to process the notice of disagreement without recognizing it had just granted the benefit sought. It issued the March 2016 SOC discussed above, denying the benefit for which it had previously granted, simply re-stating the analysis provided in the September 2014 rating decision without noting the results of the subsequent examination and the subsequent favorable adjudication. The Board finds that the March 2016 SOC was issued in error, as the Veteran’s claims for disability manifesting in numbness in the toes or feet had already been granted in full by the October 2014 rating decision. Thus, despite the fact that the May 2016 Form 9 was submitted within the window to timely perfect an as to the issues addressed in the March 2016 SOC, there was no actual controversy stemming from that SOC at that time over which the Board may take jurisdiction. The Board adds that the Veteran has not argued that there remains any controversy requiring adjudication pertaining to these claims, and observes that since the award of service connection in October 2014, neither the Veteran nor his representative has brought up these claims, to include at a July 2017 DRO hearing, at an April 2019 Board hearing, or in any subsequent briefs or statements or argument. In sum, the issues of entitlement to service connection for numbness of the left and right foot have been granted in full, and are not presently before the Board. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Under 38 C.F.R. § 3.309(e), a presumption of service connection arises for a Vietnam Veteran (presumed exposed to an herbicide agent) who develops one of several enumerated conditions associated with herbicide agent exposure, to include ischemic heart disease. The enumerated diseases shall be service connected, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). 1. Entitlement to service connection for a heart condition, to include coronary artery disease The Veteran contends that he is entitled to service connection for a heart condition, to include coronary artery disease, as due to his presumed exposure to herbicide agents during service. As was noted above, service connection is warranted on a presumptive basis for ischemic heart disease under 38 C.F.R. § 3.309(e). At primary issue in this case is whether the Veteran has a diagnosed heart condition during the period on appeal that meets the medically accepted definition of ischemic heart disease. The Veteran’s medical records contain inconsistencies on this point. In a November 2013 disability benefits questionnaire (DBQ), the examiner reported that the Veteran did not have ischemic heart disease, but instead had severe hypertrophic cardiomyopathy. The Veteran’s VA treatment records show that a March 2016 echocardiogram indicated ischemic heart disease. However, at a VA examination just one day later, the examiner reported that the Veteran’s diagnosed heart conditions were hypertensive heart disease, atrial fibrillation, and aortic stenosis, and that none of these conditions qualified within the generally accepted medical definition of ischemic heart disease. A July 2016 VA treatment record noted a diagnostic history of congestive heart failure and stated that the Veteran’s significant past medical history included coronary artery disease. Notably, 38 C.F.R. § 3.309(e) lists coronary artery disease as among the heart conditions that may be considered ischemic heart disease. A September 2020 VA examination confirmed a diagnosis of coronary artery disease, but stated that the Veteran’s condition did not qualify within the generally accepted medical definition of ischemic heart disease. Thus, the Veteran’s doctors have, at times, indicated that the Veteran has a diagnosis of ischemic heart disease. The Veteran also has a confirmed diagnosis of coronary artery disease. At the same time, VA examiners have reported that the Veteran’s condition does not meet the medically accepted definition of ischemic heart disease. Based on the foregoing, the Board finds that the evidence is in relative equipoise as to whether the Veteran has a current diagnosis of ischemic heart disease. As the evidence is in equipoise, the Board resolves all reasonable doubt to find in favor of a current diagnosis. Therefore, conceding a current diagnosis of ischemic heart disease, and given the Veteran’s presumed exposure to herbicide agents during service, service connection for a heart condition is granted on a presumptive basis. 2. Entitlement to service connection for sleep apnea The record demonstrates that a diagnosis of obstructive sleep apnea was first confirmed in a December 2010 sleep study. The Veteran contends that sleep apnea was caused by his frequent exposure to diesel fumes related to his in-service duties as a truck driver. The Veteran also testified at his Board hearing that fellow servicemembers complained about his loud snoring while he was in service. The Veteran underwent a VA examination related to this claim in September 2020. The examiner confirmed the diagnosis of sleep apnea and noted the Veteran’s report that he experienced excessive daytime fatigue while he was on active duty service. The Veteran once again mentioned that his fellow servicemembers would complain about his loud and excessive snoring and that, as a truck driver, he was constantly breathing in diesel fumes from the trucks he drove. The examiner opined that it was less likely than not that the Veteran’s sleep apnea was caused by or incurred in service. By way of rationale, the examiner first noted that service treatment records did not show any evidence that the Veteran sought treatment for fatigue or snoring while on active duty. Rather, the Veteran was first diagnosed over 40 years after service. The examiner found this evidence significant, explaining that, although sleep apnea can occur in young adults, it is not a common occurrence and those afflicted with sleep apnea at that age typically seek treatment for it. The examiner further reported that they were unable to locate any medical literature to support a causal relationship between the inhalation of diesel fumes and sleep apnea. To the contrary, the examiner found medical literature to support the notion that there was no correlation between exposure to gas fumes and obstructive sleep apnea. In an October 2020 addendum opinion, a separate examiner also noted that there was no evidence to suggest that the pharyngeal airway restriction of sleep apnea was caused by the herbicide agents the Veteran is presumed to have been exposed to during service. The examiner’s opinion, in conjunction with the addendum opinion, addresses the Veteran’s contentions and is supported by sufficient medical rationale. The Board therefore considers the opinion adequate for adjudication purposes. To date, aside from the Veteran’s own contentions, there is no evidence to support a causal relationship between exposure to diesel fumes and sleep apnea. Likewise, there is no evidence to support an in-service onset of sleep apnea aside from the Veteran’s testimony of loud snoring during service. Notably, both a diagnosis of sleep apnea and an opinion regarding the etiology of sleep apnea are questions that are medical in nature and therefore require medical expertise to answer. The Veteran, as a layperson, does not have such medical expertise and is not competent to opine on those questions. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, there is no competent evidence in favor of the Veteran’s contentions. Thus, the preponderance of the evidence is against a finding that sleep apnea was caused by or incurred in service, to include as due to exposure to diesel fumes or herbicide agents. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for testicular cancer The records demonstrate that the Veteran was diagnosed with testicular cancer in 2013. There is no evidence of an in-service onset of testicular cancer. Rather, the Veteran contends that his cancer was caused by exposure to herbicide agents during service in Vietnam and by exposure to diesel fumes related to his service as a truck driver. Notably, testicular cancer is not among the enumerated diseases that the Secretary has identified as presumably connected to exposure to herbicide agents. Nevertheless, the Board has a duty to address the Veteran’s contention to include whether service connection is warranted on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran underwent a VA examination in September 2020. The examiner noted that the Veteran underwent a left orchiectomy secondary to post-service testicular cancer. The examiner then opined that it was less likely than not that testicular cancer was caused by service. By way of rationale, the examiner explained that testicular cancer was not a recognized complication of exposure to herbicides and that the examiner could not find any medical literature to support the theory that exposure to diesel fumes could cause testicular cancer. In an October 2020 addendum, a separate examiner clarified that there was no evidence to suggest that testicular cancer was caused either by exposure to herbicide agents or exposure to diesel fumes. These opinions address the Veteran’s contentions based on available medical literature and the Board therefore considers them adequate for adjudication purposes. The Board acknowledges the Veteran’s contentions regarding testicular cancer. In claiming service connection for the condition, the Veteran noted that two other members from his unit in Vietnam had also developed cancer. The Veteran also testified before the Board that, at the time of his cancer treatment, one of his physicians suggested that the cancer could be related to herbicide agents. Regarding the latter point, although the Veteran is competent to report what was said to him by a physician, the etiology of testicular cancer is a medical question requiring medical expertise. To date, no medical expert has provided such an opinion in the record. The Veteran’s report alone cannot be considered competent medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, although it is unfortunate that other members of the Veteran’s unit have also been diagnosed with cancer, this information itself does not establish any relationship between the Veteran’s testicular cancer and his military service. Thus, based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s testicular cancer was caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.