Citation Nr: 21065807 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-25 426 DATE: October 27, 2021 ORDER Entitlement to service connection for sleep apnea, to include as due to herbicide agent exposure and/or secondary to asthma, is denied. Entitlement to service connection for alopecia, to include as due to exposure to mustard gas and/or herbicide agent exposure, is denied. REMANDED Entitlement to service connection for asthma, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for skin condition, to include as due to herbicide agent exposure, is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have (or during the pendency of the claim to have had) sleep apnea. 2. The Veteran is not shown to have (or during the pendency of the claim to have had) alopecia. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for sleep apnea, to include as due to herbicide agent exposure and/or secondary to asthma, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for establishing service connection for alopecia, to include as due to exposure to mustard gas and/or herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to August 1992, from August 2002 to August 2003, from January 2004 to July 2004, and from May 2005 to May 2006, with subsequent service in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These matters were previously remanded by the Board in February 2020. At that time, the claims for service connection for allergies and depression were also remanded. During the pendency of the remand, a June 2021 rating decision granted service connection for depression and a July 2021 rating decision granted service connection for allergic rhinitis (claimed as allergies). As those decisions constitute a full grant of the claims for service connection, the claims for service connection are no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997), (because appellant's first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream elements). The Board notes that although there was a hearing in this case, as the matters are back from remand, the American Legion must be given an opportunity to submit written argument, which is usually in the form of an Informal Hearing Presentation (IHP). As noted in the October 2021 report of contact, the Board made many attempts to obtain an IHP from the American Legion. However, no response was received. As the American Legion had an opportunity to submit an IHP but chose not to, the Board will proceed with adjudicating these matters. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for sleep apnea, to include as due to herbicide agent exposure and/or secondary to asthma, is denied. The Veteran claims he has sleep apnea which he asserts was caused by service, to include as due to herbicides therein, or alternatively, due to his asthma. Service connection may be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran's service treatment records show no complaints of, treatment for, or diagnoses of sleep apnea. Moreover, per a November 2020 Records Research response, there was no evidence to verify and concede that the Veteran was exposed to Agent Orange herbicides. Pursuant to the Board's February 2020 remand, the Veteran underwent VA sleep apnea examination in January 2021. At that time, the examiner determined that there are no findings, signs and/or symptoms to support a diagnosis of sleep apnea. The examiner explained that a March 2021 polysomnograph was negative for sleep apnea or other sleep disorder. The Board finds the January 2021 VA examiner's opinion to be highly probative and persuasive, as it is based on a review of the evidence of record, examination of the Veteran and is supported with a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). On review of the record the Board has found no evidence of any current sleep apnea. There are no contemporaneous records showing a diagnosis of such disability and sleep apnea was not found on the VA examination conducted in connection with the claim for service connection. Finally, to the extent that the Veteran believes that he has sleep apnea, which is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. In this regard, the etiology of sleep apnea is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed sleep apnea is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the lay assertions of the Veteran. Moreover, as the Veteran is not in receipt of service connection for asthma, service connection for sleep apnea as secondary to asthma cannot be established. 38 C.F.R. § 3.310(a). The threshold question that must be addressed here is whether there is competent evidence that the Veteran currently has (or during the pendency of the claims has had) the disability for which service connection is sought (sleep apnea). In the absence of proof of current disability there is no valid claim for service connection. See 38 U.S.C. § 1110; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for sleep apnea must be denied. 2. Entitlement to service connection for alopecia to include as due to exposure to mustard gas and/or herbicide agent exposure is denied. The Veteran claims he has alopecia which he asserts was caused by service, to include as due to mustard gas and/or herbicides therein. The Veteran's service treatment records show no complaints of, treatment for, or diagnoses of alopecia. Moreover, per a November 2020 Records Research response, there was no evidence to verify and concede that the Veteran was exposed to Agent Orange herbicides. Pursuant to the Board's February 2020 remand, the Veteran underwent VA skin diseases examination in January 2021. At that time, the examiner determined that there was no current diagnosis of alopecia because the condition had resolved. In this regard, the examiner noted that the Veteran reported past hair loss on his bilateral forearms, but the hair has since regrown. The Board finds the January VA examiner's opinion to be highly probative and persuasive, as it is based on a review of the evidence of record, examination of the Veteran and is supported with a reasoned medical explanation. See Nieves-Rodriguez, 22 Vet. App. at 302-04. On review of the record the Board has found no evidence of any current alopecia. There are no contemporaneous records showing a diagnosis of such disability and alopecia was not found on the VA examination conducted in connection with the claim for service connection. Finally, to the extent that the Veteran believes that he has alopecia, which is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. In this regard, the etiology of alopecia is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed alopecia is not competent medical evidence. See Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the lay assertions of the Veteran. The threshold question that must be addressed here is whether there is competent evidence that the Veteran currently has (or during the pendency of the claims has had) the disability for which service connection is sought (alopecia). In the absence of proof of current disability there is no valid claim for service connection. See 38 U.S.C. § 1110; see also Brammer, 3 Vet. App. at 225. Accordingly, service connection for alopecia must be denied. REASONS FOR REMAND 1. Entitlement to service connection for asthma to include as due to herbicide agent exposure is remanded. The Veteran underwent VA respiratory examination in January 2021 and the examiner determined that the Veteran did not have a current diagnosis of asthma. However, VA treatment records show a diagnosis of asthma in January 2020 which was not addressed by the 2021 examiner. In light of the above, the Board finds the Veteran should be scheduled for a new VA examination to address the 2020 asthma diagnosis. 2. Entitlement to service connection for hypertension to include as due to herbicide agent exposure is remanded. The Veteran's service treatment records show elevated blood pressure readings of 139/63 in July 1989, 136/58 in November 1990, 130/72 in June 1992, 135/79 in January 2003, 148/52 and 139/49 in March 2004, and 133/77 in May 2005. The Veteran underwent VA examination in January 2021 and was diagnosed with hypertension. The examiner provided a negative nexus opinion due to the fact that there was no evidence of exposure to herbicides while stationed at Fort McClennan. However, the examiner did not address the in-service elevated blood pressure readings. Moreover, the RO requested an addendum opinion regarding whether the Veteran's hypertension was caused or aggravated by a service-connected disability. The opinion was obtained in June 2021 and the examiner provided a negative nexus opinion, but his reasoning pertained to direct service connection. In light of the above, the Board finds the opinions are insufficient. Accordingly, an addendum opinion should be obtained upon remand. 3. Entitlement to service connection for skin condition to include as due to herbicide agent exposure is remanded. The Veteran underwent VA skin diseases examination in January 2021 and was diagnosed with seborrheic keratosis of the back. The examiner provided a negative nexus opinion due to the fact that there was no evidence of exposure to herbicides while stationed at Fort McClennan. Thereafter, the RO requested an addendum opinion regarding whether the Veteran's skin condition was caused or aggravated by a service-connected disability. The opinion was obtained in June 2021 and the examiner provided a negative nexus opinion, but his reasoning pertained to direct service connection. In light of the above, the Board finds the June 2021 opinion is insufficient. Accordingly, an addendum opinion should be obtained upon remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. After records development is completed, the Veteran should be afforded a VA respiratory examination to determine the nature of his claimed asthma and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current asthma arose during service or is otherwise related to service. Please explain why or why not, to include addressing the significance, if any, of the in-service complaints of chest pain and difficulty breathing in November 1982, the Veteran's answer in the affirmative to having chest pain on his May 1984, June 1986, and May 1997 reports of medical history, and his complaint of chest pain in March 2004. 3. Send the Veteran's claims file to the January 2021 VA examiner, if available to obtain an addendum opinion regarding the etiology of the Veteran's hypertension. If a new examination is required in order to respond to the request, such should be scheduled. Following review of the claims file, the examiner should provide an opinion as to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the current hypertension arose during service or is otherwise related to service? Please explain why or why not, to include addressing the significance, if any, of the in-service elevated blood pressure readings of 139/63 in July 1989, 136/58 in November 1990, 130/72 in June 1992, 135/79 in January 2003, 148/52 and 139/49 in March 2004, and 133/77 in May 2005. (b.) If not related to service, is it at least as likely as not (50 percent probability or greater) that the current hypertension was caused by a service-connected disability? Please explain why or why not. (c.) If not caused by a service-connected disability, is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension was worsened beyond natural progression (aggravated) by a service-connected disability? Please explain why or why not. 4. Send the Veteran's claims file to the January 2021 VA examiner, if available to obtain an addendum opinion regarding the etiology of the Veteran's skin condition. If a new examination is required in order to respond to the request, such should be scheduled. Following review of the claims file, the examiner should provide an opinion as to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the current skin condition arose during service or is otherwise related to service? Please explain why or why not. (b.) If not related to service, is it at least as likely as not (50 percent probability or greater) that the current skin condition was caused by a service-connected disability? Please explain why or why not. (Continued on the next page) (c.) If not caused by a service-connected disability, is it at least as likely as not (50 percent probability or greater) that the Veteran's skin condition was worsened beyond natural progression (aggravated) by a service-connected disability? Please explain why or why not. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina 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.