Citation Nr: 21070365 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-13 756 DATE: November 23, 2021 ORDER Service connection for hypertension is granted. Service connection for sleep apnea is denied. Service connection for a neck disability is denied. FINDINGS OF FACT 1. The Veteran has experienced elevated blood pressure related to hypertension since service. 2. The preponderance of the evidence is against finding that sleep apnea began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran's neck disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from July 1979 to July 1982 and from October 1987 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and May 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified in support of this appeal during a hearing held at the Montgomery, Alabama RO before the undersigned Veterans Law Judge. Unfortunately, the Veteran's complete service treatment records are not available. Earlier development of his claims revealed that they are unavailable for review. In June 2020, VA contacted the Records Management Center (RMC) to obtain the Veteran's service treatment records and was informed that the records do not exist in the RMC system. In a case such as this, where service records are unavailable, there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit-of-the-doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 21718 (2005). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service 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 with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Hypertension The Veteran contends that he has had elevated blood pressure since service that led to his diagnosis of hypertension. For the following reasons, the Board finds that service connection is warranted. The Board notes that hypertension is included in the list of chronic diseases that are subject to presumptive service connection. 38 C.F.R. § 3.309(a). The Veteran has a current diagnosis of hypertension. As stated above, the Veteran's complete service treatment records are unavailable. At his hearing the Veteran testified that during service he went to hospital for chest pain and was having high blood pressure at that time and was given medication for his blood pressure. The Veteran is competent to report prescribed medications and what doctors have told him. The Veteran has been consistent in stating that he has had elevated blood pressure since service. The Board sees no reason to doubt the Veteran's credibility regarding his description of elevated blood pressure. As such, the Board finds that the Veteran experienced elevated blood pressure during his service. Accordingly, the Veteran meets the first two elements for direct service connection. Private treatment records have been submitted documenting the extent of the Veteran's hypertension. In November 2000 the Veteran sought treatment for chest pain. The doctor noted that the Veteran has a significant history of having hypertension in the past. After evaluation, the doctor found the Veteran's elevated blood pressure to be consistent with hypertension. This evidence is probative in supporting the Veteran's contention that he had hypertension during service. The Board finds this evidence to also support the Veteran's statements that he was treated for high blood pressure during service that may have been undiagnosed hypertension. Accordingly, the Board affords great probative weight to this evidence in favor of finding service connection to be warranted. In October 2020, the Veteran underwent a VA examination for his claim. The examiner found it was less likely than not that the Veteran's hypertension began during service or is related to service. Their rationale is that hypertension was never established within one year of service and that they were unable to confirm an onset of hypertension during service. The Board notes that there is a discrepancy in the examiner's report. In section I for diagnosis on the disability benefits questionnaire, the examiner noted the date of diagnosis of hypertension to be 1994. However, in section II for medical history, they have 1994 as the date of onset and the year 2000 as the approximate date of diagnosis. No explanation is given for this discrepancy. This discrepancy causes the Board to question the credibility of the examiner's findings along with the validity of their opinion. As such, the Board affords the examiner's opinion regarding the Veteran's hypertension no probative weight. The Board finds the evidence to be in relative equipoise as to whether the Veteran experienced symptoms of hypertension since service. If the evidence is supportive or is in relative equipoise, then the veteran prevails. See 38 C.F.R. § 3.102. Accordingly, service connection for hypertension is granted. 38 C.F.R. § 3.304. Sleep Apnea The Veteran contends that he has had sleep apnea since service. For the following reasons, the Board finds that service connection is not warranted. The Veteran has a current diagnosis of sleep apnea. He has submitted multiple statements from family members, childhood friends, and fellow servicemembers documenting his symptoms. They all state that as a child the Veteran was not a snorer and that during his second period of service, he began to be an extremely loud snorer, would occasionally gasp for breath while sleeping, and would be tired despite sleeping the night. These are observable symptoms that lay persons are competent to report. Due to the consistency in the description of the Veteran's symptoms, the Board finds these statements to be credible. Accordingly, the Board finds the first two symptoms of service connection to be met. Turning to the third element, medical nexus, the evidence consists of a VA examination. In October 2020, the Veteran underwent a VA examination for his claim. The examiner found it was less likely than not that the Veteran's sleep apnea began during service or within one year after service. Their rationale is that the Veteran's reported symptoms could be attributed to other sleep diagnoses and that the Veteran was diagnosed with sleep apnea until 2015, nineteen years after service. The examiner is competent to provide this opinion, the Board finds them to be credible, and affords the opinion great probative weight. The Board acknowledges the Veteran's contention that he had sleep apnea during service. Though the Veteran, his family members, fellow service-members, and friends are competent to report observable symptoms such as snoring and gasping for breath, the Veteran has not shown that he or those who have submitted statements in support of his claim have the requisite medical knowledge to provide a medical nexus opinion for his current disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board affords the Veteran's lay statement and the submitted statements less probative weight regarding nexus and diagnosis and affords more probative weight to the October 2020 opinion. Accordingly, the preponderance of the evidence is against a finding that the Veteran's sleep apnea began during service or is otherwise related to service. Because the preponderance of the evidence weighs against this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, service connection for sleep apnea is denied. Neck The Veteran contends that he has a current neck disability related to his service. For the following reasons, the Board disagrees and finds that service connection is not warranted. The Veteran has a diagnosis of cervical spondylosis and degenerative arthritis of the spine. Arthritis is listed as a chronic disease subjective to presumptive service connection. At his hearing, the Veteran testified that he injured his neck during service after falling off a truck. As stated above, the Veteran's service treatment records are not available. The Veteran is competent to report in-service injuries and the Board finds nothing in the record to question the credibility of this portion of his testimony. Accordingly, the Veteran meets the first two elements for service connection. Turning to the third element, medical nexus, the evidence consists of an October 2020 VA examination. The examiner found it was less likely than not that the Veteran's current neck disability is related to an in-service injury. The examiner's rationale is that the chronicity of care for the Veteran's current neck disability does not include his time in service. The examiner is competent to provide this opinion, the Board finds them to be credible, and affords them great probative weight. The Veteran has submitted multiple statements and testified at his hearing that he has continuously experienced neck pain since service. Private and VA treatment records included in the claims file do not support this contention. In August 2004, the Veteran reported neck pain due to an injury, but the record does not specify how or when this injury occurred. In May 2010, the Veteran reported a two-year history of intermittent neck pain. In an April 2014 private treatment record, the Veteran presented with a chief complaint of left neck and arm pain that began in March 2014. At this appointment, he stated that in March he had lifted a 32-inch TV around the time the pain began, but was unsure about what caused the onset of pain. An August 2016 VA primary care outpatient note includes a complaint of neck pain that the Veteran attributed to sleeping wrong. The impression of the doctor was neck pain from bad posture. In a February 2017 consult, the Veteran reported neck pain that had been ongoing for the past two years. This evidence shows that the Veteran's neck pain has not been continuous, but instead intermittent. For the chronic presumption to apply, the Veteran would need to have the disease either manifest within a year of discharge or be noted during service with continuity of symptomatology since service that is attributable to the chronic disease. Also, there cannot be any intermittent causes for the disease. The Board affords more probative weight to the contemporary medical records that show the Veteran's neck pain to be intermittent and attributable to intermittent causes than the Veteran's lay statements and testimony that state his neck pain has been continuous since service and he has experienced no injuries since service. Though the Veteran is competent to describe observable symptoms such as pain, his statements and testimony are contradicted by contemporary medical records on file that show his pain has been intermittent and that he has injured his neck since service. Due to this contradiction, the Board finds the statements and testimony regarding continuous pain to be less than credible and affords them little probative weight. The Board acknowledges the Veteran's contention that his current neck disability is related to an in-service injury. Though the Veteran is competent to describe observable symptoms such as pain, the Veteran has not shown that he has the requisite medical knowledge to provide a medical nexus opinion for his current disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board has found the Veteran's statements and testimony regarding the continuity of his neck pain to be less than credible. The Board affords the Veteran's lay statement less probative weight and affords more probative weight to the October 2020 opinion and the medical records included in the claims file. Accordingly, the preponderance of the evidence is against a finding that the Veteran's neck disability was chronic in service, manifested to a compensable degree within a year of separation, or is otherwise related to service. Because the preponderance of the evidence weighs against this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, service connection for a neck disability is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.