Citation Nr: 21064829 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-37 230 DATE: October 21, 2021 ORDER Entitlement to service connection for a heart disability is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a heart disability that began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for heart disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to January 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2019. A transcript of that hearing is of record. In November 2019 the Board remanded service connection for sleep apnea and stayed service connection for heart condition. Service connection for heart condition was remanded by the Board in January 2020, and service connection for sleep apnea was remanded by the Board in August 2020. Service connection for hypertension was granted by an October 2020 rating decision, and is no longer on appeal. The Veteran is represented by a private attorney for the issues of service connection for a low back disability, a respiratory disability, a left ankle disability, and sterility. Therefore, these issues are not discussed below, and are the subject of a separate Board decision. Entitlement to service connection for a heart disability The Veteran contends that he has a heart disability due to exposure to herbicide agents in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that there is no in-service injury, event, or disease that can the basis for the Veteran's claim. A November 2008 private treatment note contains an impression of congestive heart failure, which is prior to the period on appeal but is an indication that the Veteran may have a current heart disability. Service connection may be established on a presumptive basis for certain disabilities, including ischemic heart disease, resulting from exposure to herbicides. 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 herbicides, unless there is affirmative evidence to establish that the Veteran was not so exposed during that service. 38 C.F.R. §§ 3.307(a)(6)(iii). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit held that veterans who "served in the 12 nautical mile territorial sea of the Republic of Vietnam" are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. The Veteran contends that he was exposed to herbicide agents in the Republic of Vietnam at least three times on covert operations in November or December 1974 destroying ammunition dumps in river deltas of Vietnam as part of an Underwater Demolition Team, and that his personnel files were then destroyed. Unfortunately, this contention is not supported by the record. The Veteran's DD 214 indicates that he did not enter service until January 1975. The Veteran's January 1975 enlistment contract indicates that this was his first enlistment - there is no applicable (NA) service from which he was last discharged, and he had 0 days of total active federal service. The Veteran's personnel records contain no evidence of service in the Republic of Vietnam. Additionally, a February 2014 document indicates that a historian found no evidence of the Veteran in Underwater Demolition Team or SEAL training records. A December 2020 VA memorandum concluded that herbicide exposure cannot be conceded, and that the evidence does not show that the Veteran had duty or visitation in Vietnam or its inland waterways or nautical service in offshore eligible waters as defined in Blue Water Navy Vietnam Veterans Act of 2019. December 2020 notations found that Veteran's personnel records indicate that he required a waiver to join the military that was not signed until December 1974. This memorandum also noted his nautical service aboard the USS Ranger was between June 1975 and January 1979, which is outside the Vietnam era. The most probative evidence of record thus indicates that the Veteran did not serve in the Republic of Vietnam, or its inland waterways, or within the 12 nautical mile territorial sea of the Republic of Vietnam, during the Vietnam era. There is no contention in the record that the Veteran was exposed to herbicide agents in any way other than being present in the Republic of Vietnam during the Vietnam era. The Veteran has not argued, and his service treatment records (STRs) do not reflect, that his heart disease began during service. The only event that the Veteran has pointed to as causing his heart disease is presumed exposure to herbicide agents in Vietnam during service, and, as is discussed above, the most probative evidence of record is against a finding that the Veteran was exposed to herbicide agents in Vietnam. As there is no competent or credible evidence of in-service exposure to herbicide agents or any other event during service that could be the basis of this claim, a VA examination is not required. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. There has not been substantial compliance with the Board's previous remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). The August 2020 Board remand instructed the AOJ to obtain an addendum opinion regarding the etiology of the Veteran's sleep apnea that specifically considers and discusses the Veteran's competent and credible lay statements that his sleep apnea began during service, he was told by a fellow servicemember during service that he snored, and has had continued symptomatology since separation. Unfortunately, the October 2020 addendum opinion does not discuss the symptoms of sleep apnea during and since service. The response to the question specifically referencing the snoring duirng service was that it is less likely than not that the Veteran's sleep apnea began during service based on the Veteran's age and weight during service, which showed his body mass index (BMI) within normal limits. The examiner explained that obesity is one risk factor for someone to experience sleep apnea, and the Veteran had no weight issue while in service. This response is inadequate. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not (50 percent or greater probability) related to service? The examiner must specifically discuss the Veteran's competent and credible lay statements that he was told by a fellow servicemember that he snored during service and that he has had continued symptomatology since service, which he believes indicates that his sleep apnea began during service. Copies of all pertinent records should be provided to the examiner. The opinion offered must be supported by a complete rationale. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.