Citation Nr: 21002642 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-07 290 DATE: January 14, 2021 ORDER Entitlement to service connection for a heart disability is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an increased rating for the residuals of a right ankle fracture, currently rated as 10 percent disabling, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of evidence is against a finding the Veteran’s current heart disability is the result of an in-service disease or injury, as well as a finding that the condition manifest to a compensable degree within one year of his separation from service. 2. The preponderance of evidence is against a finding the Veteran’s current hypertension is the result of an in-service disease or injury, as well as a finding that the condition manifest to a compensable degree within one year of his separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1982 to September 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran appeared at a hearing before the undersigned in April 2015. A transcript of the hearing is of record. In July 2015, the Board remanded the issues on appeal for further development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to have several documents translated from Korean to English; to send the Veteran a copy of his March 2012 statement regarding sleep apnea so that he could provide information so VA could assist him in obtaining private treatment records from a Utah facility referenced therein; to obtain records from the Troop Medical Clinic and 121st General Hospital in Yongsan, Korea; and then schedule the Veteran for examinations to obtain nexus opinions regarding his service connection claims. The record reflects the Korean documents have been translated. In March 2017, the AOJ sent the Veteran a letter requesting authorization to seek treatment records from several medical providers in Korea, to include the Troop Medical Clinic and 121st General Hospital in Yongsan, Korea, since the records held by these providers are not service treatment records but rather post-service records created during the Veteran’s employment with the Department of Defense in the Republic of Korea. The Veteran did not submit an authorization in response to the AOJ’s request rather an explanation of the records he has already submitted from these facilities with a follow-up statement indicating he was no additional evidence to submit regarding his appeal. In March 2019, the AOJ sent the Veteran a development letter with a copy of his March 2012 statement regarding sleep apnea and asked him to provide authorization to request records from the Utah facility referenced in his statement. In April 2019, the Veteran responded to the AOJ’s March 2019 development letter and corrected his prior statement indicating he was not treated for sleep apnea in Utah but rather at a later date in Long Beach, California, submitting treatment records to confirm this treatment. The Veteran was scheduled for examinations in August 2019. The Board finds the August 2019 VA examiner’s opinions are adequate regarding the issues of service connection for a heart disability and hypertension, as these conditions and their symptoms are not typically capable of lay observation, with the examiner explaining there is no documentation or reports of manifestations of the claimed disabilities until several years after the Veteran’s separation from service. Thus, the Board finds there has been substantial compliance with its prior remand directives regarding the issues of service connection for a heart disability and hypertension, making those issues ripe for appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges it is remanding other issues on appeal so the AOJ can request any records that may be available for the Veteran from the Social Security Administration (SSA) regarding a potential claim for disability benefits with that agency. Yet, the record establishes the Veteran stopped working in 2012; therefore, SSA records are not relevant to the question of whether the claimed heart disability and hypertension were incurred during the Veteran’s period of service from February 1982 to September 1992. As a result, the Board will proceed with the Veteran’s appeal of those claims. 1. Entitlement to service connection for a heart disability is denied. 2. Entitlement to service connection for hypertension is denied 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. Establishing 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic disease listed in 38 C.F.R. § 3.309(a) are service connected on a presumptive basis when they manifest to a compensable degree within one year of separation from service. See 38 U.S.C. § 1112; 38 C.F.R. § 3.307(a)(3). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the record establishes the Veteran has a heart disability and hypertension. The Veteran’s July 2019 VA examination confirmed diagnoses of hypertension, coronary artery disease, and myocardial infarction (acute, subacute, or old), which have been noted in treatment records since 2005. The only issue that remains is whether the Veteran’s current disabilities are the result of an in-service disease or injury or can be presumed to have resulted from service under the chronic disease presumptions noted above. The Board finds the preponderance of evidence is against a finding that either a heart disability or hypertension is the result of an in-service disease or injury in the Veteran’s case, as well as a finding that either condition manifest to a compensable degree within one year of his separation from service. Initially, the Board notes the Veteran’s lay statements are insufficient to establish the presence of a heart disability or hypertension in service, or in the one-year presumptive period after service, as both of these conditions are beyond the scope of lay observation because they require medical skill and diagnostic testing for diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, the Veteran has essentially conceded that he was unaware he had either condition until he was hospitalized following a heart attack several years after his separation from service. During his April 2015 hearing, the Veteran testified “I didn’t know I had problems but, you know, after I get out 2002, I think 2002, when I do exercise at the gym at the time I was a civilian . . . . and then I have a heart attack at that time.” The Veteran further testified he did not seek treatment for a heart condition during active service and did not receive treatment for hypertension until after a stent procedure for his heart condition. Although the Veteran is not competent to establish the presence of a heart disability or hypertension, he is competent to report his medical history; however, his testimony regarding his medical history weighs against a finding that service connection is warranted on either a direct or presumptive basis. Although a generalized lay assertion that a claimed disability is the result of service is typically insufficient to trigger VA’s duty to provide an examination or obtain a nexus opinion regarding a claim, the Board nevertheless directed the AOJ to obtain opinions in this case in light of VA’s heightened duty to consider the benefit of the doubt in the Veteran’s case due to the apparent unavailability of his full service treatment records. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). An August 2019 VA examiner considered all the evidence of record, to include the Veteran’s lay statements, and reported it is less likely than not that either a heart disability or hypertension is the result of an in-service disease or injury in the Veteran’s case. The August 2019 VA examiner explained there is no indication the Veteran had either condition until he suffered a heart attack in 2005. The Board recognizes the Veteran testified during his April 2015 hearing that he suffered a heart in 2002, but the Board notes the Veteran’s equivocal testimony regarding the specific date of his heart attack with records translated from Korean to English clearly establishing that he suffered a heart attack in 2005, more than a decade after his separation from service, confirming the probative value of the August 2019 VA examiner’s opinions. In sum, the Board finds service connection is not warranted for a heart disability or hypertension on either a direct or presumptive basis. There is no indication the Veteran was treated for either condition until more than a decade after his separation from service; therefore, the presumptive provisions for chronic diseases under 38 C.F.R. § 3.307(a)(3), and the related concept of a continuity of symptomatology, are not for application. There is also no competent evidence linking either condition to a disease or injury in service or even evidence relating to the occurrence of an in-service disease or injury, which weighs heavily against an award of service connection on a direct basis. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and service connection for a heart disability and hypertension must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to sleep apnea is remanded. VA obtained an opinion regarding the Veteran’s service connection for sleep apnea in August 2019. Unfortunately, the August 2019 VA opinion is inadequate to make an informed decision on the Veteran’s claim because the examiner failed to address the Veteran’s credible and competent reports of snoring, breathing lapses during sleep, and daytime fatigue in service and how these may or may not support a finding that his currently diagnosed sleep apnea manifest in service. Thus, a new opinion is necessary to ensure the decision on the Veteran’s claim is fully informed. 2. Entitlement to an increased rating for the residuals of a right ankle fracture, currently rated as 10 percent disabling, is remanded. 3. Entitlement to TDIU is remanded. Initially, the Board notes TDIU is an element of the Veteran’s increased rating claim for his service-connected right ankle disability because he has explicitly raised the issue of unemployability during the appeal period. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an August 2020 deferred rating decision that accompanied the AOJ’s post-remand August 2020 supplemental statement of the case, the AOJ acknowledged that, in light of the other evidence of record, VA’s duty to assist required it to request any records that may be available for the Veteran from the Social Security Administration (SSA) upon receipt of a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). It appears the AOJ did not request SSA records because the Veteran failed to respond to a July 2020 notice letter that informed him his July 2020 VA Form 21-8940 was incomplete because he allegedly failed to answer questions 8 and 18 on the form; however, the Board finds the Veteran’s July 2020 VA Form 21-8940 provides sufficient information to raise a valid TDIU claim. Regarding question 8, which asks what service-connected disability prevents gainful employment, the Veteran clearly indicated the combined effects of all his service-connected disabilities render him unemployable rather than a single disability. The Veteran also indicated question 18, which requests employment information for the past five years, does not apply to him, explaining in the “remarks” section of the form that he stopped working in 2012, which was well outside the five-year period addressed by question 18 at that time he completed the form. Thus, the Board finds the AOJ erroneously deemed the Veteran’s application incomplete, requiring further development of the issue of TDIU, to include the obtainment of any SSA records that may be available. The Board notes SSA records are potentially relevant to the rating assigned for the Veteran’s service-connected right ankle disability, requiring remand of that issue as well. The matters are REMANDED for the following action: 1. Request any SSA records that may be available for the Veteran. 2. Schedule the Veteran for a new examination regarding his service connection claim for sleep apnea. The selected examiner must provide an opinion addressing whether the Veteran’s sleep apnea is at least as likely as not (50 percent probability or greater) the result of disease or injury in active service. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. If the examiner’s opinion fails to specifically discuss the Veteran’s lay reports of snoring, breathing lapses during sleep, and daytime fatigue in service, the examination report must be returned to the examiner as incomplete. The examination report must include a complete rationale for the opinion provided. 3. Readjudicate the issues on appeal, to include entitlement to TDIU as an element of the Veteran’s appeal of the rating assigned for his service-connected right ankle disability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.