Citation Nr: 21076831 Decision Date: 12/28/21 Archive Date: 12/27/21 DOCKET NO. 17-05 136 DATE: December 28, 2021 ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents as well as secondary to other service-connected disabilities, is denied. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to exposure to herbicide agents as well as secondary to other service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran's hypertension is not caused by, or due to, his active-duty service, to include exposure to herbicide agents nor is it proximately due to or aggravated by service-connected disabilities. 2. The Veteran's OSA is not caused by, or due to, his active-duty service, to include exposure to herbicide agents, nor is it proximately due to or aggravated by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as due to exposure to herbicide agents or secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for obstructive sleep apnea, to include as due to exposure to herbicide agents or secondary to service-connected disabilities are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 1968 to January 1971. During his military service he was deployed to the Republic of Vietnam (RVN). This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) September 2015 rating decision of the Agency of Original Jurisdiction (AOJ). In June 2021 the Veteran appeared before the undersigned Veterans Law Judge at a virtual video-conference Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. In September 2021 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the September 2021 remand, the Board finds that the AOJ conducted additional development as instructed, and that there has been substantial compliance with the remand directives. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents or secondary to service-connected disabilities The Veteran claims that his hypertension is due to his active-duty service, specifically due to his exposure to herbicide agents. In the alternative, the Veteran claims that his hypertension is due to, or aggravated beyond the natural progression of the disease, by his service-connected conditions, specifically his coronary artery disease (CAD) or his diabetes mellitus. However, as the Veteran is not a medical professional, he is not competent to provide testimony regarding complex medical determinations, such as the etiology of his hypertension. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has a current diagnosis of hypertension, which fulfills the first Shedden requirement necessary to establish service connection on a direct basis. The Board notes that the Veteran was deployed to the Republic of Vietnam during his period of active-duty service, and was exposed to herbicide agents (to include Agent Orange). This fulfills the second Shedden element necessary to establish direct service connection. To determine service connection on a direct basis, what is left for the Board to ascertain is whether there is a link, or nexus, between the Veteran's current hypertension disability and his active-duty military service. The Board notes that, as the Veteran has been diagnosed with hypertension, and his diabetes and coronary artery disease have been determined to be service-connected, the first two Wallin elements necessary to establish service connection on a secondary basis have been met. What is left for the Board to determine is whether the Veteran's service-connected disabilities have caused, or worsened his hypertension. The Veteran's service treatment records (STRs) show no evidence of hypertension. The Veteran's post-service medical records show he was diagnosed with hypertension in 2005. A September 2015 VA examination reviewing the Veteran's diabetes noted that the Veteran had no complications due to his condition generally, and specifically ruled out hypertension. In January 2017 the Veteran submitted a letter from Dr. B.L., a non-VA physician who has treated the Veteran. Dr. B.L. noted that the Veteran's heart conditions are a "major contributing cause of hypertension." However, the Board notes that Dr. B.L.'s findings are conclusory as he does not provide a rationale as to how the Veteran's cardiac conditions may or may not affect his hypertension. Furthermore, Dr. B.L. noted that the Veteran's peripheral neuropathy is one of the "major contributing cause[s]," but the Veteran's neuropathy has not been found to be service-connected. As such, even if Dr. B.L.'s language rose to the required level of certainty necessary to establish service connection, he was unclear as to what level the Veteran's non-service-connected disability may (or may not) affect his hypertension. In June 2019 the Veteran was seen for a VA examination to determine the etiology of his hypertension. As discussed in the Board's September 2021 remand, the June 2019 examiner failed to adequately address the effect, if any, of herbicide agents on his eventual development of hypertension. Furthermore, as the Veteran's CAD had yet to be service-connected, the June 2019 examiner only addressed whether the Veteran's diabetes caused his hypertension. While on its own the June 2019 examiner's opinion is inadequate for adjudication, the Board finds no reason to doubt the examiner's competency or credibility with regard to the findings about the Veteran's hypertension and any relationship, if any, with his diabetes. The examiner concluded that based on the Veteran's treatment records, his treatment regimen, and his "normal" A1C levels of blood glucose over a course of "years" show that his hypertension is "less likely than not ... proximately due to or the result of the Veteran's service connected[sic] diabetes." In October 2021, pursuant to the Board's September 2021 remand instructions, the Veteran was seen for another VA examination to determine the etiology of his hypertension. The examiner noted that there is no evidence that shows hypertension is due to, "or otherwise etiologically related to," exposure to herbicide agents. Regarding whether the Veteran's CAD is a cause for hypertension, the examiner noted that while hypertension can cause CAD, it is not itself "caused by coronary artery disease." Similarly, hypertension has been found to worsen or aggravate CAD, but the medical evidence does not show that CAD aggravates hypertension, and therefore the Veteran's condition is "less likely than not aggravated beyond its natural progression by [his] coronary artery disease." The Board finds that the June 2019 VA examiner's opinion, bolstered by the October 2021 VA examiner's findings, have more probative weight Dr. B.L.'s January 2017 letter. As noted above, Dr. B.L.'s opinion is conclusory, and moreover failed to differentiate the possible connections between the Veteran's hypertension and his service-connected and non-service-connected disabilities. The VA examiners addressed the specifics of the Veteran's hypertensive condition and the relationship (or lack thereof) between it and his service-connected disabilities. As such, the weight of the evidence shows that the Veteran's hypertension was not caused by, or otherwise due to his active-duty service, nor is it caused by, due to, or aggravated beyond the natural progression of the disease by his other service-connected disabilities. The Board finds that neither the final Shedden or Wallin elements necessary to establish service connection on a direct or secondary basis, respectively, have been fulfilled. Based on the above, the Board finds that the preponderance of evidence is against the Veteran's claim for entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran's claim is denied. 2. Entitlement to service connection for obstructive sleep apnea, to include as due to exposure to herbicide agents as well as secondary to other service-connected disabilities The Veteran claims that his obstructive sleep apnea is due to his active-duty service, specifically due to his exposure to herbicide agents. In the alternative, the Veteran claims that his OSA is due to, or aggravated beyond the natural progression of the disease, by his service-connected conditions, specifically his coronary artery disease (CAD) or his diabetes mellitus. However, as the Veteran is not a medical professional, he is not competent to provide testimony regarding complex medical determinations, such as the etiology of his OSA. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has a current diagnosis of OSA, which fulfills the first Shedden element necessary to establish direct service connection. The Veteran's STRs show no evidence of sleep issues during his military service, and by the Veteran's own recollection at his June 2021 hearing, his sleep difficulties began in "the early [19]80s." However, as noted above, the Veteran has been presumed to have been exposed to herbicide agents, to include Agent Orange, while on active duty. Therefore, the second Shedden element necessary to establish direct service connection has been met. In order to establish service connection on a direct basis, that is left for the Board to determine is whether there is a nexus between the Veteran's current OSA diagnosis and his in-service exposure to herbicide agents. As noted above, the Veteran has a diagnosis of OSA, and his diabetes and CAD have already been determined to be service-connected. As such, the first two Wallin elements necessary to establish secondary service connection have been met. What is left for the Board to determine is whether the Veteran's service-connected disabilities caused his OSA, or if his OSA has been aggravated by his service-connected disabilities. An August 2018 VA examination found that the Veteran's condition was first diagnosed in 2004. However, the Veteran reports that he experienced sleep difficulties since the 1980s, as he has been told by his wife that he would snore and stop breathing. While the Veteran and his wife are not able to diagnose a condition as complex as sleep apnea, they are both able to provide evidence as to the onset, duration, frequency, and severity of symptoms they experience and/or observe. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The August 2018 examiner noted that the Veteran's OSA was not aggravated beyond the natural progression of the disease by his diabetes as the two conditions are not pathologically related. In October 2021, pursuant to the Board's September 2021 remand directives, the Veteran was seen for another VA examination to determine the etiology of his OSA. The examiner noted that OSA is not "etiologically related to his exposure to herbicide agents." Furthermore, as OSA is a disability affecting the airways and respiratory system, the examiner noted that the OSA is "less likely than not ... proximately due to" the Veteran's CAD. Continuing, the examiner pointed out that as CAD "does not obstruct the respiratory tract," the Veteran's OSA is "less likely than not aggravated beyond its natural progression by [his] coronary artery disease." The Board notes that the Veteran has not produced any competent and probative medical evidence that shows it is as least as likely as not that the Veteran's OSA caused by or due to his active-duty service, nor were they caused by, due to, or aggravated by, his other service-connected disabilities. As such, the weight of the probative, competent, and credible medical evidence of record shows that the Veteran's OSA is not caused by or due to his active-duty service, nor is it caused by, due to, or aggravated by, his service-connected disabilities. Therefore, neither the final Shedden element (necessary for direct service connection) or Wallin element (necessary for secondary service connection) have been met. Based on the above, the Board finds that the preponderance of evidence is against the Veteran's claim for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). (Continued on the next page) The Veteran's claim is denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.