Citation Nr: 21068241 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-54 407 DATE: November 9, 2021 ORDER 1. Entitlement to service connection for sleep apnea is denied. 2. Entitlement to an initial rating in excess of 10 percent for ischemic heart disease status post myocardial infarction (coronary artery disease [CAD]) prior to March 28, 2019 is denied. 3. Entitlement to a rating of 60 percent, but no higher, for CAD from March 28, 2019 is granted. REMANDED 4. Entitlement to service connection for a pancreatic disability, to include pancreatitis, to include as secondary to diabetes mellitus (claimed as pancreas problems) is remanded. FINDINGS OF FACT 1. Sleep apnea did not have its onset during active service and is not otherwise related to active service. 2. Prior to March 28, 2019, the Veteran's CAD was not manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 3. From March 28, 2019, the Veteran's CAD was manifested by left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial rating in excess of 10 percent for CAD prior to March 28, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, Diagnostic Code (DC) 7005. 3. The criteria for a rating of 60 percent, but no higher, for CAD from March 28, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, DC 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968. By way of history, in October 2019, the Board remanded the claims for service connection for sleep apnea, service connection for a pancreatic disability, and an increased rating for CAD for VA treatment records, private treatment records, and new VA examinations. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for sleep apnea. The Veteran contends his sleep apnea is related to service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim of service connection for sleep apnea. As to evidence of a current disability, a July 2017 VA treatment record shows that the Veteran was diagnosed with sleep apnea confirmed by sleep study. Therefore, the Veteran meets the first element of service connection. As to evidence of a disease or injury, the service treatment records show that the Veteran did not experience sleep apnea during service. For example, service treatment records (STRs) are silent for complaints of or treatment for trouble sleeping or breathing. The March 1968 Report of Medical History (RMH) documents that the Veteran marked "no" for frequent trouble sleeping, shortness of breath, and ear/nose/throat trouble. Within the STRs, there is a partially legible document. Based on what is visible and the fact that the entrance RMH and Report of Medical Examination (RME) are in the file, the Board reasonably believes this document is the discharge RME. The discharge RME documents that all bodily systems were clinically evaluated as normal, and there are notations within the notes section that would indicate the Veteran had any symptoms related to sleep apnea. Thus, the Veteran does not meet the second element of a service-connection claim. The Board also finds that the preponderance of the evidence is against a nexus between the current disability and service. Notably, the post service treatment records resemble the service treatment records in that the Veteran was seen regularly following service discharge for multiple medical complaints, but which did not include sleep apnea until October 2012. Private treatment records, which begin in 1991, are silent for any mention of sleep apnea. A December 2011 VA treatment record documents that the Veteran snored, but his lady friend denied any apnea. Even if this notation was the time period when the Veteran developed sleep apnea, this record would show he developed sleep apnea 45 years after service discharge. It is unlikely the Veteran would seek treatment for some ailments in the 1990s but not seek treatment for sleep apnea if he experienced symptoms during this time. Moreover, the Veteran has not alleged his sleep apnea began in service or began soon after service. The finding that sleep apnea did not have its onset in service is supported by the October 2020 VA examiner's opinion, wherein the examiner opined that STRs were silent for any sleep concerns or snoring. The claims file shows the Veteran refused a sleep study for several years beginning in 2011 until he completed a sleep study in 2017 which was completed outside of the VA. The Veteran was diagnosed with obstructive sleep apnea in 2017 at a weight of 276 which is 49 years after service discharge. The Veteran is noted as being obese. There is no medical evidence to support obstructive sleep apnea as being due to the Veteran's service. The examiner noted the most common cause of obstructive sleep apnea is excess weight and obesity, which is associated with soft tissue of the mouth and throat. During sleep when throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked. In addition to obesity, other anatomical features associated with obstructive sleep apnea, many of them hereditary, include a narrow throat, thick neck, and round head per the Mayo Clinic. The examiner documented the records reviewed and what was documented within these records, which were accurate descriptions of the evidence. The Board accords the October 2020 VA medical opinion high probative value because the examiner reviewed the claims file, cited to medical records, and provided an opinion that included a rationale that was based on evidence in the file and medical principles. The opinion is consistent with what is documented in the medical records, including the post-service medical records, which show the Veteran's first mention of snoring/sleep apnea as approximately 2011 which was later confirmed as obstructive sleep apnea by sleep study in 2017. At the present time, there is no competent evidence of a positive nexus to weigh against this medical opinion. While the Veteran has attempted to establish a nexus through his own lay assertions that his sleep apnea is related to service, he is not competent to offer opinions as to the etiology, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent and credible evidence of a nexus between sleep apnea and service to weigh against the October 2020 negative opinion. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea. There is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating 2. Entitlement to an initial rating in excess of 10 percent for CAD prior to March 28, 2019. The Veteran was granted service connection for CAD with a 10 percent evaluation in an April 2012 rating decision effective August 31, 2010, the date ischemic heart disease was added to the list of Agent Orange of disabilities. In a July 2013 rating decision, the Agency of Original Jurisdiction (AOJ) granted an earlier effective date for CAD of October 22, 2007, the date he initially filed the claim for service connection, on a finding on clear and unmistakable error. In an October 2020 rating decision, the RO increased the evaluation for CAD to 30 percent effective March 28, 2019, the date a VA examination showed symptoms that warranted a higher evaluation. The Veteran contends his CAD warrants a higher rating. In the February 2008 VA Form 21-4138 Statement in Support of Claim, the Veteran noted his first heart attack was in 1992, and he had two additional heart attacks which were treated by stent placements. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. DC 7005 provides that a 10 percent rating is warranted for a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or a need for continuous medication. 38 C.F.R. § 4.104, DC 7005. A 30 percent rating is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is warranted for chronic congestive heart failure, or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Id. Following a review of the evidence of record, the Board finds that the preponderance of the evidence of record, including as discussed below, is against a finding that the Veteran's CAD resulted in a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray prior to March 28, 2019. For example, the Veteran under a VA examination in November 2008. The VA examiner clinically estimated the Veteran's METs level to be over 10 based upon the Veteran's report of no chest pain and no shortness of breath with exertion except when running which caused him shortness of breath. There was no evidence of congestive heart failure on examination. The Veteran stated he had a history of myocardial infarction in 1992, 1994, and 1997 with a history of one stent placement in 1997. This report of one stent placement conflicts with his February 2008 statement where he notes he had two heart attacks that were treated with stents. The Veteran stated he has a history of four coronary artery catheterizations with the last one in 2003. The Veteran denied any history of coronary artery bypass surgery. He noted that he had stress tests in the past with the most recent one occurring in 2000. The Veteran underwent a VA examination in June 2012. The examiner documented the Veteran's CAD required continuous medication, including lisinopril, rosuvastatin, and aspirin. He required percutaneous coronary intervention in 1997 and experienced myocardial infarction in 1992. The examiner found no congestive heart failure. During interview based METs testing, the Veteran denied experiencing noted symptoms such as dyspnea, fatigue, etc. with any level of physical activity. The examiner found there was no evidence of cardiac hypertrophy or dilatation on the June 2012 echocardiogram. CAD's impact on his ability work was noted as the Veteran being much more limited by other physical activities, but his heart precluded him from heavy physical labor. Left ventricular ejection fraction (LVEF) was 65 percent. The Veteran underwent a VA examination in June 2013. The examiner documented the Veteran's CAD required continuous medication, including acetylsalicylic acid (ASA), lisinopril, and rosuvastatin, and and he required percutaneous coronary intervention in June 1997 and experienced myocardial infarction in February 1991. The examiner found no congestive heart failure. Most recent exercise testing was noted as September 18, 2007; however, the examiner indicated that the METs level was not included within the testing report. The examiner noted the Veteran denied experiencing symptoms with any level of physical activity. The examiner described the functional impact of CAD as the Veteran does not have any exercise related cardiac symptoms, and there is no change in symptoms since June 2012 at the time of the last VA examination. The Veteran's last stress test was performed in September 2007 which was negative for cardiac ischemia. The examiner found there was no evidence of cardiac hypertrophy or dilatation on the June 2013 echocardiogram. LVEF was 60 percent. The Veteran underwent a VA examination in May 2016. The examiner documented the Veteran's CAD required continuous medication, including amlodipine, atrovastatin, losartan, and metoprolol. The examiner noted the Veteran did not have congestive heart failure, cardiac arrhythmia, pericardial adhesions, infectious heart conditions, or heart valve conditions. The examiner found the Veteran did not have hypertrophy or dilatation. A December 2014 nuclear stress test was positive for ischemia, ejection fraction (EF) was 58 percent, and wall motion showed inferior hypokinesis. June 2016 interview-based stress testing documented that the Veteran reported dyspnea and fatigue, and the interview-based METs testing showed a METS level of 3 to 5 METs. However, the examiner noted the limitation in METs level is due to multiple medical conditions including the heart condition(s), and it is not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The rationale was noted as back pain and diabetic neuropathy. The examiner documented the effect of CAD on his ability to work was that the Veteran was precluded from physical occupations, but he was not precluded from sedentary occupations. A July 2017 anesthesia pre-procedure assessment note documents a METs level of greater than 4, but the examiner does not document if the METs level is solely due to the heart. As noted during VA examinations, the Veteran has multiple disabilities affecting his symptomology during physical exertion. Significantly, the June 2008 VA examination documented a METs estimate of over 10. During the June 2012 and June 2013 VA examinations, the Veteran denied any symptoms such as dyspnea, fatigue, etc. during any physical activity. While the May 2016 VA examination showed an estimated METS level of 3 to 5, the examiner noted this was due to multiple disabilities and not solely due to CAD, and it was impossible to estimate the METs level attributable to each condition. The July 2017 assessment note did not document if the METs level of attributable only to the heart. VA treatment records from September 2007 to February 2008 document LVEF from 55 to 67 percent. A July 2014 VA echocardiogram documented normal LVEF. The Board has also reviewed the VA and private treatment records of record during the appeal period; however, such records do not otherwise contain objective findings which would permit the assignment of an increased disability rating in excess of 10 percent for this appeal period. To the extent that the Veteran's lay statements of record assert generally that an increased disability rating is warranted for his CAD, the Veteran was correct in that a 30 percent rating was granted as of March 28, 2019. However, to the extent that he believes the 30 percent rating should go back to the 2007 date of claim, the clinical findings in the four VA examination reports during this appeal period do not support the allegation. For all the reasons discussed above, the Board concludes that the preponderance of the evidence of record weighs against the Veteran's claim of entitlement to an increased disability rating for CAD in excess of 10 percent prior to March 28, 2019. As the preponderance of evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim for an increased disability rating is denied. 3. Entitlement to a rating of 60 percent, but no higher, for CAD from March 28, 2019. Following a review of the evidence of record, the Board finds that the preponderance of the evidence of record, including as discussed below, is in favor a finding that the Veteran's CAD resulted in left ventricular dysfunction with an ejection fraction of 30 to 50 percent, but CAD did not result in chronic congestive heart failure, or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent from March 28, 2019. For example, the Veteran underwent a VA examination in March 2019. The examiner documented the Veteran's CAD required continuous medication, including amlodipine and losartan. The examiner found the Veteran did not have hypertrophy or dilatation. March 2019 interview-based stress testing documented that the Veteran reported dyspnea and fatigue, and the interview-based METs testing showed a METS level of 5 to 7 METs. The Veteran did not participate in an exercise stress test due to LVEF of 50 percent or less, diabetes mellitus, and peripheral neuropathy. The effect of CAD on the Veteran's ability to work was noted as an inability to engage in any kind of exertional activities. The examiner mark yes for the Veteran having congestive heart failure (CHF). The Board notes the treatment record are silent for any mention of CHF. This is further documented in the July 2020 VA addendum opinion. The July 2020 examiner documented that the Veteran does not have CHF, nor has he had it in the past. The CHF notation in the March 2019 VA examination was a typographical error. The examiner reviewed cardiac echocardiograms from June 2012 and July 2014, and they showed a structurally normal heart with excellent heart function. These findings would preclude chronic CHF. The examiner reviewed all progress notes and there is no evidence by any medical provider of an episode of CHF or notes regarding chronic CHF. The Veteran's problem lists do not list CHF as a diagnosis. The Veteran is not on any medications for CHF. There are no consults from a board certified cardiologist regarding CHF. Therefore, the Board finds the preponderance of the evidence is against a finding that the Veteran had CHF at any point. The Board finds the March 2019 examiner's notation of LVEF of 50 percent or less is indicative of LVEF between 30 to 50 percent; however, without further information, the Board cannot find the preponderance of the evidence supports a finding that LVEF was below 30 percent at any point during this appeal period. To the extent that the Veteran's asserts generally that an increased disability rating is warranted for his CAD, the Veteran was correct in that a 60 percent rating is warranted, but no higher, as of March 28, 2019. REASONS FOR REMAND 4. Entitlement to service connection for a pancreatic disability, to include pancreatitis, to include as secondary to diabetes mellitus (claimed as pancreas problems) is remanded. The October 2019 Board remand directed the VA to schedule the Veteran for an examination to determine the etiology of his pancreatic disability including both direct and secondary service connection. The Veteran underwent a VA examination in July 2020. The Board finds this examination is inadequate because the examiner did not discuss whether the Veteran's pancreatic disability was aggravated beyond its natural progression by any service-connected disability. Accordingly, the Board must remand the claim for service connection for a pancreatic disability to assist the Veteran with development of his claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a Court remand confers on a claimant the right to compliance with the remand orders). The matters are REMANDED for the following action: 1. Send the Veteran's claim file to an appropriate clinician for an addendum opinion to discuss whether the Veteran's pancreatic disability was aggravated (that is, permanently increased in severity beyond the natural progress of the disorder) by any of his service-connected disabilities. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran's documented medical history and assertions. If the examiner believes an in-person examination is required, the Veteran should be scheduled for such an examination. (Continued on the next page) The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's pancreatic disability was aggravated (that is, permanently increased in severity beyond the natural progress of the disorder) by any service-connected disabilities. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.