Citation Nr: 21070356 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-49 761 DATE: November 23, 2021 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for hypertension as secondary to diabetes mellitus. New and material evidence has been received to reopen the claim for entitlement to service connection for hypertension as secondary to diabetes mellitus. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for hypertension as secondary to diabetes mellitus is denied. Entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. Evidence was submitted within one year of the December 2014 rating decision, but the Veteran did not appeal the decision. An April 2015 rating decision considered the evidence and made determinations as to whether it was new or material. 2. New evidence received since the December 2014 rating decision relates to an unestablished fact and raises a reasonable possibility of sustaining a claim of entitlement to service connection for diabetes mellitus. 3. New evidence received since the December 2014 rating decision relates to an unestablished fact and raises a reasonable possibility of sustaining a claim of entitlement to service connection for hypertension as secondary to diabetes mellitus. 4. The preponderance of the evidence is against finding that sleep apnea manifested during active service. The evidence does not establish an in-service injury or disease for the claim of service connection for sleep apnea. 5. The preponderance of the evidence is against finding that the Veteran was exposed to herbicide agent in service, to include Agent Orange. 6. The evidence does not establish an in-service injury or disease for the claim of service connection for diabetes mellitus. 7. The evidence does not show that hypertension is caused or aggravated by a service-connected disability. 8. The evidence does not establish an in-service injury or disease for the claim of service connection for prostate cancer. CONCLUSIONS OF LAW 1. The December 2014 rating decision that denied entitlement to service connection for diabetes mellitus is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The December 2014 rating decision that denied entitlement to service connection for hypertension is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for hypertension as secondary to diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to December 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2015 and June 2017 rating decisions by a Department of Veteran's Affairs (VA) Regional Office (RO). The April 2015 rating decision denied entitlement to service connection for sleep apnea and declined to reopen the issues of entitlement to service connection for the claimed diabetes and hypertension. The June 2017 rating decision denied entitlement to service connection for prostate cancer. The Veteran timely appealed both rating decisions and requested a Board hearing. In June 2021, a virtual hearing was held before the undersigned Veterans Law Judge. A transcript has been associated with the file. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. 1. New and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus. 2. New and material evidence has been received to reopen a claim for entitlement to service connection for hypertension as secondary to diabetes mellitus. In a December 2014 rating decision, VA denied entitlement to service connection for sleep apnea based on a finding that the record did not contain supporting evidence showing that the Veteran's sleep apnea neither began in nor was a result of his active-duty service. The December 2014 rating decision declined to reopen the issues of entitlement to service connection for diabetes and entitlement to service connection for hypertension. In reference to diabetes, the RO found that while there was new evidence of record that had not previously been considered, the evidence was not material as it did not address the issue of contention which is whether the Veteran's diagnosed diabetes was incurred in service, within one year after his separation from service, or was caused by his active-duty service. As for hypertension, the RO also stated while there was new evidence of record, it was not material as it did not discuss the contention at issue which is whether the Veteran's hypertension was a result of his active-duty service. The Veteran did not appeal this decision but new VA treatment records were received within the one-year appeal period. Lang v. Wilkie, 971 F.3d 1348 (2020) (VA medical records created within the appeal period following a decision of the agency of original jurisdiction are constructively received for the purposes of 38 C.F.R. § 3.156(b), regardless of whether the VA adjudicator had knowledge of their existence). In January 2015, the Veteran requested to reopen his claim for entitlement to service connection for sleep apnea, diabetes, and hypertension. In an April 2015 rating decision, VA determined there was new and material evidence received to reopen the claim for service connection for sleep apnea and denied the claim on the merits. The VA also determined there was no new and material evidence to reopen the claims to entitlement to service connection for diabetes and hypertension. Because the April 2015 rating decision considered the evidence submitted within one year of the December 2014 denial and made a determination as to whether it was new and material, the December 2014 rating decision became final as to the denial of service connection for hypertension and diabetes. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. See Lang; Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014) (In the legacy system, when evidence is constructively received within the appeal period of a rating decision, the decision does not become final until a determination is made as to whether such evidence is new and material.). However, because the evidence was determined to be new and material to reopen the claim for sleep apnea, the December 2014 denial did not become final as to sleep apnea. 38 C.F.R. § 3.156. Rather, the June 2014 original claim for service connection for sleep apnea remained pending and the appeal before the Board today stems from that claim. Relevant evidence added to the record since the final December 2014 rating decision includes the Veteran's July 2021 Board hearing transcript regarding the issues of entitlement to service connection for sleep apnea, diabetes, hypertension, and prostate cancer. This evidence is new as it was not previously considered. In the Veteran's July 2021 Board hearing he discussed the onset of his sleep apnea, his exposure to herbicide agents while in service that resulted in his diabetes, and the connection between his medically prescribed diabetes medication and his current hypertension. This is material in that it relates to an unestablished fact and raises a reasonable possibility of substantiating the service connection claims. The claims of service connection for diabetes and hypertension are reopened. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active-duty service, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Certain chronic diseases, including diabetes and hypertension, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 3. Entitlement to service connection for sleep apnea. The Veteran asserts his sleep apnea began in service and has continued to the present. The Veteran was diagnosed with sleep apnea in a June 2014 sleep study. The Veteran's VA treatment records show he has been receiving treatment for sleep apnea since that time. As a result, the first element of service connection has been met. As explained below, the Board does not find that the second element of service connection, an in-service injury or disease, is met. The Veteran's service treatment records are negative for a diagnosis of and treatment for sleep apnea. The Veteran's service treatment records are also silent for reported symptoms of sleep apnea such as daytime sleepiness, snoring, cessation of breathing while sleeping, and headaches. The Veteran's December 1968 entrance examination is silent for issues regarding sleep and sleep apnea. The Veteran was also provided an examination shortly after entering service in September 1969 in which no sleep issues were noted. Additionally, he was provided periodic examinations in November 1974, June 1975, June 1979, June 1982, and July 1986 in which no sleep issues or sleep apnea symptoms were noted. During the June 1982 examination the examiner noted, "examinee denies all significant medical or surgical history since last physical exam." The Veteran's May 1989 retirement examination is also silent for sleep issues or accompanying symptoms. The Veteran's VA outpatient records show that in July 2005 the Veteran denied having sleep apnea. However, the Veteran began reporting fatigue in the morning in December 2009. His provider then ordered a sleep study as sleep apnea was suspected. The Veteran underwent a sleep study in January 2010 in which the examiner stated "sleep study completed. Split night criteria not met." The Veteran was not diagnosed with sleep apnea at that time as the criteria for such a diagnosis was not met however significant snoring was noted in February 2010. In January 2014, the Veteran reported daytime sleepiness and increasingly loud snoring. An additional sleep study was ordered in January 2014 in which the Veteran was diagnosed with sleep apnea. In April 2018, the Veteran was afforded a Decision Review Officer hearing in which the Veteran asserted he did not have sleep issues prior to his military service. He further stated that while in service he sought medical attention for his sleeping issues and the medical team would put him in a room and let him listen to music. The Veteran further stated while in service, there were no notations made regarding any respiratory or sleeping issues. The Veteran stated he was not diagnosed with sleep apnea until his 2014 sleep study and now uses a CPAP machine for treatment of his sleep apnea. The Veteran was afforded a Board hearing in July 2021. Here, the Veteran again asserted his sleep apnea began in service as he experienced snoring while on active duty. The Veteran states that after his first sleep study, he was diagnosed with restless leg syndrome which he also experienced in service. The Veteran asserted that he would be sleeping, he would stop breathing, and his legs would jerk. The Veteran states none of these issues were reported in his service treatment records because the treating physicians at the time did not know what sleep apnea was. However, as stated above, no issues regarding sleep generally were reported during his time in service, despite many periodic examinations and opportunities to do so. In fact, the Veteran denied experiencing any symptoms in 1982 and 1989. The Veteran's first assertion of sleeping issues was in a December 2009 VA outpatient record approximately 20 years after service. His service treatment records are silent for any sleep issues or sleep apnea symptoms while in service despite the Veteran asserting, he sought treatment for his condition. Additionally, the Veteran's 2010 sleep study determined that the criteria for a sleep apnea diagnosis was not met at that time. The Veteran was provided a sleep study in 2014 in which the criteria for sleep apnea was then met and a diagnosis was provided. The Veteran asserts his 2010 sleep study incorrectly diagnosed him with restless leg syndrome as opposed to sleep apnea. However, there is no competent evidence of record to support that the 2010 sleep study was incorrect in its denial to provide a sleep apnea diagnosis. While the Board acknowledges the Veteran's lay assertions regarding the onset of his sleep apnea and his assertions of a faulty 2010 sleep study, the record does not reflect the Veteran is a trained medical professional. The Court in Layno v. Brown, 6 Vet. App. 465, 469 (1994), determined that the Veteran is competent to report his observed and experienced symptoms, such as fatigue and daytime sleepiness. However, as he has not shown that he has any medical training, experience, or expertise, he is not competent to provide a medical etiology opinion connecting his sleep apnea to active-duty service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the etiology of sleep apnea is too complex to be addressed by a layperson. This diagnosis is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical training and testing by sleep study, outside the realm of a lay individual. See 38 C.F.R. § 3.159(a)(1). Hence, the Veteran's opinion, no matter how sincere, is not competent nexus evidence. In this case, the Veteran's recent statements reporting a long history of symptoms of sleep apnea are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to sleep. See AZ v. Shinseki, 731 F.3d 1303, (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing Fed. R. Evid. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). In particular, the Veteran's 20 years of service treatment records, as well as post-service medical records prior to 2009, reflect numerous medical complaints and treatment, but nothing related to sleep. Based upon the language and context of these records, the Board finds that the Veteran was reporting all the disabilities, medical conditions, and symptoms that he was experiencing at that time. Therefore, his failure to report any complaints of sleep apnea at that time is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. The record reflects that the Veteran's sleep apnea onset approximately 25 years after service in 2014. As a result, the Board affords his assertions regarding the onset of his sleep apnea no probative weight. Therefore, the Board concludes that the second element of service connection, an in-service injury or disease, is not established by the competent and credible evidence of record. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the claim is denied. 4. Entitlement to service connection for diabetes mellitus. The Veteran asserts his diabetes is a result of exposure to Agent Orange while in service. Neither the Veteran, his representative, nor the record raise any other theory of service connection. As a result, the Board will limit its analysis to the herbicide exposure theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). The Veteran was diagnosed with diabetes in December 2009. His VA treatment record and private medical records show he has been seeking treatment for this condition since that time. As a result, the first element of service connection has been met. As explained below, the Board does not find that the second element of service connection, an in-service injury or disease, is met. Service connection may be granted for certain diseases, including type 2 diabetes, associated with in-service exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309(e). 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). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The Veteran asserts he was exposed to Agent Orange while serving in Okinawa, Japan. In a May 2010 statement in support of his claim, the Veteran asserted he was stationed at Kaden Air Force Base in Okinawa which was considered a "support base for troops coming and going to Vietnam." The Veteran stated he worked in an area where he came into contact with those individuals coming from Vietnam, exposing him to Agent Orange. During the July 2021 Board hearing, the Veteran also asserted that while stationed in Okinawa, Agent Orange was stored in barrels there prior to shipping them to Johnston Island in the Pacific Ocean, furthering his exposure to the herbicide agents. The Veteran does not assert that at any time was he stationed in nor did he travel to Vietnam or to any of the locations presumptively associated with herbicide exposure during his active-duty service. Additionally, service personnel records do not document service in Vietnam. The Veteran's military personnel records show that the Veteran was stationed at Kaden Air Force Base in Okinawa, Japan from approximately August 1973 to April 1976. In an April 2010 request for information, the VA determined there were no records of exposure to herbicides present for the Veteran. In April 2017, VA issued a formal finding stating that "VA lacks the information" needed to verify herbicide exposure as the Veteran did not respond to requests for additional evidence to substantiate his claim. In April 2018, information was received from the Compensation Service indicating that the Department of Defense has not identified any location on Okinawa where Agent Orange was used, tested, stored, or transported. Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. There were no combat operations on Okinawa during those years and no need for Agent Orange use there. Okinawa was not on the Agent Orange shipping supply line which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships. Further, there is no scientific evidence available to VA showing that being in the vicinity of an individual, previously located in Vietnam can be considered as exposure to active Agent Orange or can result in long-term health effects. As set forth, service personnel records do not document service in Vietnam and VA could find no evidence showing that personnel from the Veteran's unit were tasked with taking supplies from Okinawa to Vietnam. Additionally, information from the Department of Defense does not show any Agent Orange use, storage, or transport in Okinawa and there is no scientific support for exposure via contaminated equipment. While the Veteran is competent to report his inservice activities and perceived exposures, the overall evidence does not support his contentions and his unsubstantiated lay assertions concerning Agent Orange exposure are not credible. Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event actually occurred during service). The Board finds the April 2018 report to be highly probative to the issue of herbicide use in Okinawa. Additionally, the Board notes that in August 2017 and July 2021, the Veteran submitted new articles asserting the use of Agent Orange in Okinawa, Japan. However, the articles submitted from the Veteran are speculative in nature as there is no evidence within the VA nor Department of Defense to show Agent Orange was stored on Okinawa. Additionally, the Veteran, while competent to report on the observable aspects of his service, is not competent to state with certainty what was contained in barrels stored on Okinawa. As a result, the Board affords the articles submitted by the Veteran no probative weight in this matter. Given the foregoing, presumptive service connection for diabetes based on exposure to herbicide agents is not warranted. 38 C.F.R. § 3.307, 3.309(e). In furtherance of his claim to service connection, in June 2017, the Veteran submitted copies of is private medical records. Here, the provider noted the onset of the Veteran's diabetes to be in August 2013. As the evidence does not show exposure to herbicides during service and this is the Veteran's only contended in-service injury or disease, the Board finds that the second element of service connection is not met. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. 5. Entitlement to service connection for hypertension as secondary to diabetes mellitus. The Veteran asserts his current hypertension is a result of the medication taken for his diabetes. The Veteran does not assert, nor does the record suggest, that service connection on any other basis is warranted. See July 2021 hearing transcript. As such, the Board will only discuss service connection on a secondary basis. Robinson. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310 (a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran was diagnosed with hypertension in approximately November 2006. The Veteran's VA treatment records show he has been seeking medical care for this condition since that time. The first element of service connection has been met. During the April 2018 DRO hearing, the Veteran specifically contends that his hypertension is a result of the medication he was prescribed for his diabetes mellitus. In the July 2021 Board hearing, the Veteran again states that his hypertension is a direct result of the medication he was prescribed for his diabetes. However, the Veteran's diabetes is not and has not been service connected at any time during the appeal period in question. As diabetes is not one of the Veteran's service-connected disabilities and he has made no other assertions regarding the etiology of his hypertension, entitlement to service connection for hypertension as secondary to his diabetes is not warranted. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. 6. Entitlement to service connection for prostate cancer. The Veteran asserts his current prostate cancer is a direct result of exposure to Agent Orange while in service. The Veteran does not assert, nor does the record suggest, that service connection on a direct basis is warranted. See July 2021 hearing transcript. As such, the Board will only discuss service connection on a presumptive basis due to Agent Orange exposure. Robinson. The Veteran was diagnosed with prostate cancer in approximately January 2016 in a VA treatment record. The Veteran has been seeking care for his prostate cancer since that time with no notations of remission found. As a result, the first element of service connection has been met. As stated above, service connection may be granted for certain diseases, including prostate cancer, associated with in-service exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309(e). As explained fully in the diabetes analysis above, the Board has found that the Veteran was not exposed to herbicide agent, to include Agent Orange, in service. Given the foregoing, presumptive service connection for prostate cancer based on exposure to herbicide agents is not warranted. 38 C.F.R. § 3.307, 3.309(e). The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.