Citation Nr: 21076092 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-10 110 DATE: December 22, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. FINDINGS OF FACT 1. The Veteran's COPD first developed many years after discharge from service and his COPD is unrelated to service. 2. The Veteran first developed sleep apnea many years after discharge from service and his sleep apnea is unrelated to service. 3. The Veteran first developed hypertension many years after discharge from service and his hypertension is unrelated to service. 4. The Veteran first developed GERD many years after discharge from service and his GERD is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for GERD are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to August 1978. 1. Entitlement to service connection for COPD. The Veteran submitted his claims for service connection for COPD, sleep apnea, hypertension and GERD in June 2016. He reported that he was an ammunition storage specialist at Fort McClellan. He asserted that his disabilities were due to assisting with storage of chemical agents, including sarin (GB), nerve (VX) and mustard (HD). He also asserted that he was exposed to herbicides and PCBs when he was stationed at Fort McClellan. In November 2016 the Veteran asserted that his claimed disabilities were side effects of exposure to sulfur mustard gas or Lewisite according to 38 C.F.R. § 3.316. On his October 2017 notice of disagreement, the Veteran asserted that they used Agent Orange to clear foliage at Fort McClellan and that Agent Orange was stored at Fort McClellan. On his April 2019 VA Form 9 the Veteran stated that his disabilities were not due to Agent Orange. He asserted that his disabilities were due to his exposure to mustard gas, VX and GB while stationed at Fort McClellan and not due to Agent Orange exposure. At his April 2021 hearing the Veteran asserted that his disabilities were due to his exposure to sarin gas, mustard gas, blister agents, other nerve agents, dioxins, and/or Agent Orange. The Veteran testified that he first had lung problems in the early 1990's. He said that around 1997 he was diagnosed with COPD. In general, service connection may be granted for a disability or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Full-body exposure to nitrogen, sulfur mustard, or Lewisite during active military service, together with the subsequent development of certain chronic diseases, to include COPD, is sufficient to establish service connection for that condition. 38 C.F.R. § 3.316(a)(2). A Veteran must provide evidence of in-service exposure and a diagnosis of current disability but is relieved of the burden of providing medical evidence of a nexus between the current disability and his in-service exposure. Rather, that nexus is presumed if the other conditions are met, subject to the regulatory exceptions in 38 C.F.R. § 3.316(b). The Veteran served on active duty in the Army from July 1976 to August 1978. His service personnel records indicate that he served at Fort McClellan in Alabama from November 1976 to August 1978. The Board notes that such records do not show that the Veteran served in the Republic of Vietnam and neither he nor his representative contend otherwise. Instead, he maintains that he was exposed to mustard gas, lewisite, Agent Orange and other toxic chemicals while serving at Fort McClellan. The Veteran's service personnel records indicate that the entire time he was at Fort McClellan he worked as an ammunition storage helper or as an ammunition specialist. The Veteran's service personnel records do not show any exposure to nitrogen, sulfur mustard, or Lewisite. The Veteran has not alleged he had direct exposure to any of the toxins. He reports he was present when they were moved but the personnel who was moving the items wore protective gear. He reports he was exposed to mustard gas by being near the perimeter where the agents were stored. The Veteran has not submitted any evidence indicating direct exposure to any agents. The Board finds the evidence weighs against a finding of proven exposure to these chemicals in service and the legal provisions on conditions related to such exposure are inapplicable. 38 C.F.R. § 3.316. The Veteran's service treatment records (STR) reveal no COPD or any other lung disability. On his August 1978 Report of Medical History (RMH), in preparation for discharge from service, the Veteran denied chronic cough, asthma, shortness of breath, or ever having pain/pressure in the chest. X-rays of the Veteran's chest in August 1978 were negative. A September 2000 VA treatment record notes that the Veteran's lungs were clear and that he had no shortness of breath or chest pain. A July 2015 pulmonary function test revealed abnormality consistent with COPD. On VA DBQ examination in June 2016 the Veteran reported that his COPD began in 1997. In October 2016, a VA physician reviewed the Veteran's records, including his reports of being exposed to hazardous chemicals, and opined that the Veteran's current COPD is unrelated to service. The examiner recognized that the Veteran had pharyngitis and a cough during service, but noted that pharyngitis is not related to COPD. She further noted that the cough during service was an acute problem and unlikely related to the Veteran's current COPD. To the extent that the Veteran asserts that his current COPD is due to toxic chemical exposure during service, he is not competent to offer an opinion on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). Furthermore, other than the Veteran's assertions, there is no evidence that the Veteran was exposed to sarin gas, mustard gas, blister agents, dioxins, Agent Orange, or any other toxic chemicals during service. The Veteran first developed COPD many years after discharge from service and there is no probative evidence relating the Veteran's current COPD to his military service. In this case the most probative evidence is the October 2016 VA medical opinion that the Veteran's current COPD is unrelated to service. The October 2016 VA physician reviewed the Veteran's medical history and opined that the Veteran's current COPD is not related to service. There are no medical opinions to the contrary. Accordingly, the preponderance of the evidence is against the claim and service connection for COPD is not warranted. 2. Entitlement to service connection for sleep apnea. The Veteran asserted at his hearing that he developed sleep apnea as a result of his inservice toxic chemical exposures. He also testified that he started snoring during service and that he thought this indicated that he had sleep apnea during service. At the hearing the Veteran was told that the record would be held open for 60 days in case he wished to submit additional evidence such as lay statements. No additional records were received from the Veteran. The Veteran's STR reveal no sleep complaints or diagnoses. On his August 1978 Report of Medical History, in preparation for discharge from service, the Veteran denied frequent trouble sleeping. A September 2015 private sleep study states that the Veteran had a known history of sleep apnea syndrome for the last 12 years. The impression included moderate-to-severe obstructive sleep apnea and morbid obesity. A June 2016 VA DBQ examination states that the Veteran reported that he had had hypersomnia since 2002 and that he had been on a BiPAP for 10 years. To the extent that the Veteran asserts that his current sleep apnea began during service or that it is due to toxic chemical exposure during service, he is not competent to offer an opinion on matters requiring medical expertise. See Jandreau. Furthermore, the Veteran's current assertions that his sleep apnea began during service are contradicted by the Veteran's August 1978 denial of sleep problems when being examined for discharge from service and by his report to a VA examiner in June 2016 that he had had symptoms of sleep apnea (hypersomnolence) since 2002, which was more than 20 years after discharge from service. As noted previously in this decision, other than the Veteran's assertions, there is no evidence that the Veteran was exposed to any toxic chemicals during service. His assertions of exposure are of a routine nature i.e. no evidence of being exposed to any spills or other types of exposure. The probative evidence of record indicates that the Veteran did not develop sleep apnea due to inservice chemical exposure. The record indicates that the Veteran was first diagnosed with sleep apnea many years after discharge from service and there is no probative evidence relating the Veteran's current sleep apnea to his military service. Accordingly, the preponderance of the evidence is against the claim and service connection for sleep apnea is not warranted. 3. Entitlement to service connection for hypertension. The Veteran reported at his hearing that he developed hypertension within a year of discharge from service. He indicated that when he became an animal warden in 1979 he saw a doctor and was told that he had hypertension. The Veteran said that he did not think that he would be able obtain any medical records that would verify that he was diagnosed with hypertension soon after service. As noted above, the Veteran's record was held open for 60 days, but no additional evidence was submitted. The Veteran's STR reveal that on examination for entry to service his blood pressure reading was noted to be high. However, the Veteran was not diagnosed with hypertension and the examiner stated that the Veteran had no disqualifying defects. The STR contain no diagnoses of hypertension. On his August 1978 Report of Medical History, in preparation for discharge from service, the Veteran denied having or ever having had high or low blood pressure. The Veteran's discharge examination report indicated a normal blood pressure measurement. A June 2016 VA DBQ examination report indicates that the Veteran was diagnosed with hypertension in 2000. Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Board acknowledges that the Veteran has asserted that he was diagnosed with hypertension within a year of discharge from service. However, the Veteran's testimony is contradicted by the medical evidence of record which does not indicate any diagnoses of hypertension prior to 2000. In this case, the most probative evidence indicates that the Veteran was not diagnosed with hypertension within one year of separation from service and there is no competent evidence documenting the presence of symptoms of the disease within one year. As such, entitlement to service connection for hypertension as a chronic disease on a presumptive basis is not warranted. 38 C.F.R. § 3.309(a). To the extent that the Veteran asserts that his current hypertension is due to toxic chemical exposure during service, the record does not support his assertions that he was exposed to toxic chemicals as discussed above. Furthermore, even if such exposure were to be shown, he is not competent to offer an opinion on matters requiring medical expertise. See Jandreau. The record indicates that the Veteran was first diagnosed with hypertension many years after discharge from service and there is no probative evidence relating the Veteran's current hypertension to his military service. Accordingly, the preponderance of the evidence is against the claim and service connection for hypertension is not warranted. 4. Entitlement to service connection for GERD. The Veteran asserted at his hearing that he developed GERD during service. He reported that it was not very bad during service, but that it continued to get worse after discharge from service. The Veteran's STR reveal no gastrointestinal complaints or diagnoses. On his August 1978 Report of Medical History, in preparation for discharge from service, the Veteran denied frequent indigestion and he denied stomach/intestinal problems. A June 2016 VA DBQ examination diagnosed the Veteran with GERD. To the extent that the Veteran asserts that his current GERD began during service the Board does not find such to be credible because the contemporaneous STR do not show any complaints of GERD type symptoms and the Veteran denied ever having had any GERD type symptoms, such as frequent indigestion or stomach problems, just prior to discharge from service. Furthermore, regarding whether the Veteran's GERD is due to toxic chemical exposure during service, there is no probative evidence indicating such exposure, and even if such exposure were to be shown, he is not competent to offer an opinion on matters requiring medical expertise. See Jandreau. The record indicates that the Veteran was first diagnosed with GERD many years after discharge from service and there is no probative evidence relating the Veteran's current GERD to his military service. Accordingly, the preponderance of the evidence is against the claim and service connection for GERD is not warranted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.