Citation Nr: 21072407 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-47 637 DATE: December 3, 2021 ORDER Entitlement to service connection for a respiratory disability, to include sleep apnea, is denied. Entitlement to service connection for a liver disability is denied. Entitlement to service connection for a heart disability is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a respiratory disability, to include sleep apnea, at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a liver disability at any time during or approximate to the pendency of the claim. 3. The Veteran's heart 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, to include as secondary to a service-connected disability. 4. The Veteran's hypertension 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 entitlement to service connection for a respiratory disability, to include sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a liver disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from December 1968 to December 1972 and from February 1973 to February 1977. In November 2019, the Board of Veterans' Appeals (Board) remanded the matters on appeal for additional evidentiary development. As the requested development has been completed, the matters have been properly returned to the Board for appellate adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION The Veteran maintains entitlement to service connection for a respiratory disability, to include sleep apnea, a liver disability, a heart disability, and hypertension. The Veteran avers that his established exposure to Triethylborane, a jet fuel accelerant, as well as exposure to asbestos and other hazardous materials, led to the development of these disabilities. Entitlement to service connection benefits is established when the following elements are satisfied: (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 current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303 (a). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. In addition, certain chronic diseases, such as arteriosclerosis (coronary artery disease) and cardiovascular-renal disease, including hypertension, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303 (b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a respiratory disability, to include sleep apnea, is denied. The Board first turns to the Veteran's claim of entitlement to service connection for a respiratory disability, to include sleep apnea, that is characterized by breathing complications. Bearing in mind the applicable laws and regulations, and considering the pertinent evidence of record, the Board finds that service connection for a respiratory disability, to include sleep apnea, is not warranted. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of a current diagnosis of a respiratory disability, to include sleep apnea, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran's private and VA treatment records are silent for complaint, treatment, or diagnosis of a respiratory disability, including sleep apnea. VA provided the Veteran with VA examinations in December 2020. At the December 2020 VA Respiratory Conditions examination, the examiner reviewed the claims file and performed a clinical evaluation of the Veteran. Later, she reviewed and interpreted the Veteran's most recent (March 2021) pulmonary function testing (PFT) results. She ultimately found that the Veteran did not have any respiratory disability, including asthma, emphysema, chronic obstructive pulmonary disease (COPD), chronic bronchitis, constrictive bronchiolitis, interstitial lung disease, restrictive lung disease, mycotic lung disease, sarcoidosis, benign or malignant neoplasms or metastases of the respiratory system, pulmonary vascular disease, or pleurisy with empyema with or without pleurocutaneous fistula. At the December 2020 Sleep Apnea examination, the examiner instructed the Veteran to attend a sleep study in July 2021. The Veteran declined the sleep study, stating that he could not tolerate a continuous airway pressure (CPAP) machine. Thus, the examiner found that the Veteran did not have a sleep apnea diagnosis. The Board acknowledges that the Veteran did not undergo a sleep study which might have confirmed the presence of sleep apnea. The Board notes that a claimant, in pursuing his appeal, has some responsibility to cooperate in the development of all facts pertinent to his claims, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). As discussed above, the Veteran declined the study. As such, the Board finds that VA met its duty to assist concerning this claim. The Board finds that the VA examination reports are the most probative evidence of record concerning whether the Veteran has been diagnosed with a respiratory disability, to include sleep apnea, at any time during or approximate to the pendency of the claim. In that regard, the examiner thoroughly reviewed the claims file, provided clinical evaluations of the Veteran, and requested appropriate testing, prior to concluding that the Veteran does not have a current respiratory disability. The Board has considered the Veteran's lay assertions concerning the presence of breathing complications. While the Veteran is competent to report the symptoms that he experiences through his senses, he is not shown to have the specialized knowledge to diagnose a medically complex condition such as a respiratory disability, to include sleep apnea, as such diagnoses require testing and medical expertise to identify. Thus, these statements are not probative regarding the presence of a current respiratory disability, to include sleep apnea. The Board finds that the competent, credible, and probative evidence does not establish that the Veteran has a respiratory disability, to include sleep apnea. The evidence does not indicate a diagnosis of the claimed condition at any time, even prior to the filing of the Veteran's claim. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the evidence does not indicate a diagnosis of a respiratory disability, to include sleep apnea. Accordingly, service connection is not warranted for a respiratory disability, to include sleep apnea, as there is no current diagnosis. Brammer, 3 Vet. App. at 225. 2. Entitlement to service connection for a liver disability is denied. The Board now turns to the Veteran's claim of entitlement to service connection for a liver disability that is characterized by elevated liver enzyme levels. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. The Board notes that elevated liver enzymes are a laboratory finding and not a disease or disability for which service connection can be granted absent a diagnosis of an underlying disease or disability manifested by these laboratory findings. In the absence of proof of a current diagnosis of an underlying liver disease or disability, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran's private and VA treatment records are silent for complaint, treatment, or diagnosis of a liver disability. VA provided the Veteran with VA examinations in December 2020. At the December 2020 Hepatitis, Cirrhosis and Other Liver Conditions examination, the examiner reviewed the claims file, including all laboratory results and performed a clinical evaluation of the Veteran. Following this evaluation, the examiner concluded that the Veteran was not and had never been diagnosed with a liver disability, including hepatitis A, B, or C, autoimmune or drug-induced hepatitis, hemochromatosis, cirrhosis of the liver, primary biliary cirrhosis, sclerosing cholangitis, or any other liver condition, nor had he undergone a liver transplant. The Board finds that the VA examination report is the most probative evidence of record concerning whether the Veteran has been diagnosed with a liver disability at any time during or approximate to the pendency of the claim. In that regard, the examiner thoroughly reviewed the claims file and provided a clinical evaluation of the Veteran prior to concluding that the Veteran does not have a current liver disability. The Board has considered the Veteran's lay assertions concerning the presence of a liver disability. While the Veteran is competent to report the symptoms that he experiences through his senses, he is not shown to have the specialized knowledge to diagnose a medically complex condition such as a liver disability, as such diagnosis requires testing and medical expertise to identify. Thus, these statements are not probative regarding the presence of a current liver disability. The Board finds that the competent, credible, and probative evidence does not establish that the Veteran has a liver disability. The evidence does not indicate a diagnosis of the claimed condition at any time, even prior to the filing of the Veteran's claim. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the evidence does not indicate a diagnosis of a liver disability. Accordingly, service connection is not warranted for a liver disability, as there is no current diagnosis. Brammer, 3 Vet. App. at 225. 3. Entitlement to service connection for a heart disability is denied. Next, the Board turns to the Veteran's claim of entitlement to service connection for a heart disability. As an initial matter, the Veteran was diagnosed with coronary artery disease in 2003. Thus, the first element of service connection, a current disability, has been met. Further, concerning the second element of service connection, the in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records are silent for complaint, treatment, or diagnosis of a cardiovascular disability. The Veteran has not asserted that a cardiovascular disability manifested during service; rather, he asserts that such a disability manifested many years later as a result of hazardous exposures during service. To that end, VA obtained an etiological medical opinion in December 2020. Following a review of the claims file and a clinical evaluation of the Veteran, the VA examiner found that the claimed disability was less likely than not incurred in service or caused by the claimed in-service exposures. She reasoned that the Veteran's service treatment records are silent for any heart disability, including coronary artery disease, and that the Veteran's treating physicians (cardiologists) have attributed his development of the disability to the multiple risk factors present in the Veteran, such as obesity, diabetes, hypertension, hyperlipidemia, and male gender. The VA examiner noted that none of the hazardous exposures identified are capable of producing cardiotoxicity. She concluded that no nexus had been established. The VA examiner based her opinion on her clinical experience and medical expertise, review of the medical evidence of record, an interview with the Veteran, and his clinical presentation and history. The Board finds this opinion highly probative on the question of whether the Veteran's coronary artery disease is related to service, to include hazardous exposures therein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that in proffering her medical opinion, the VA examiner observed that the Veteran's coronary artery disease may be related to his diagnosed hypertension, thus raising the theory of secondary service connection. However, as will be discussed in the following section, service connection for hypertension is not warranted. Thus, as secondary service connection presupposes that the underlying condition is service-connected, the preponderance of the evidence is against a finding of service connection for coronary artery disease, and there is no reasonable doubt to resolve. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for coronary artery disease on a secondary basis. See 38 C.F.R. § 3.310. The Board notes that certain chronic diseases, such as coronary artery disease, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. However, in this case there is no competent, credible medical evidence detailing the diagnosis of a heart disability, to include coronary artery disease, within one year of the Veteran's discharge from service to warrant a grant of service connection on a presumptive basis. In fact, the Veteran's diagnosis of coronary artery disease occurred in 2003, twenty-six years after separation. The Board has also considered the applicability of continuity of symptomatology; however, a chronic heart disability was not noted during the Veteran's active duty service. Thus, service connection on a presumptive basis for a heart disability that manifested within one year of service separation or based on chronicity or continuity of symptomatology is not established. See 38 C.F.R. §§ 3.303 (b), 3.307. The Board has also considered the Veteran's lay assertions that his current heart disability is related to hazardous exposure during his active duty service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. However, cardiovascular disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's lay statements cannot be accepted as competent medical evidence. Accordingly, there is no competent medical evidence of a link between the Veteran's heart disability and his active duty service, to include any hazardous exposures therein. In conclusion, the preponderance of the evidence is against the award of service connection for a heart disability on any basis. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 4. Entitlement to service connection for hypertension is denied. Finally, the Board turns to the Veteran's claim of entitlement to service connection for hypertension. As an initial matter, the Veteran was reportedly diagnosed with hypertension in the 1990s with confirmation of such diagnosis at the December 2020 VA examination. Thus, the first element of service connection, a current disability, has been met. Further, concerning the second element of service connection, the in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records are silent for complaint, treatment, or diagnosis of hypertension. The Veteran has not asserted that hypertension manifested during service; rather, he asserts that such a disability manifested many years later as a result of hazardous exposures during service. To that end, VA obtained an etiological medical opinion in December 2020. Following a review of the claims file and a clinical evaluation of the Veteran, the VA examiner found that the claimed disability was less likely than not incurred in service or caused by the claimed in-service exposures. She reasoned that the Veteran's service treatment records do not contain any blood pressure readings outside of the normal range and that the Veteran's diagnosis of hypertension occurred many years after separation. The VA examiner also observed that none of the hazardous exposures identified were capable of producing the Veteran's diagnosed essential hypertension. She concluded that no nexus had been established. The VA examiner based her opinion on her clinical experience and medical expertise, review of the medical evidence of record, an interview with the Veteran, and his clinical presentation and history. The Board finds this opinion highly probative on the question of whether the Veteran's hypertension is related to service, to include hazardous exposures therein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that certain chronic diseases, such as cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. However, in this case there is no competent, credible medical evidence detailing the diagnosis of a hypertension within one year of the Veteran's discharge from service to warrant a grant of service connection on a presumptive basis. In fact, the Veteran himself reported that he was diagnosed with hypertension in the 1990s; at the earliest, this diagnosis would have occurred thirteen years after separation. The Board has also considered the applicability of continuity of symptomatology; however, hypertension or indications of such, including elevated blood pressure readings, were not noted during the Veteran's active duty service. Thus, service connection on a presumptive basis for hypertension that manifested within one year of service separation or based on chronicity or continuity of symptomatology is not established. See 38 C.F.R. §§ 3.303 (b), 3.307. The Board has also considered the Veteran's lay assertions that his hypertension is related to hazardous exposure during his active duty service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. However, cardiovascular-renal disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's lay statements cannot be accepted as competent medical evidence. Accordingly, there is no competent medical evidence of a link between the Veteran's hypertension and his active duty service, to include any hazardous exposures therein. 5. In conclusion, the preponderance of the evidence is against the award of service connection for hypertension on any basis. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.