Citation Nr: 21077167 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-10 398 DATE: December 28, 2021 ORDER Service connection for an eye condition is denied. Service connection for a sleep condition, to include as secondary to a service-connected disability, is granted. REMANDED Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for breathing problems is remanded. FINDINGS OF FACT 1. The Veteran's eye condition was not incurred or related to an in-service injury, disease, or event, and his farsightedness had no superimposed disability during service. 2. The Veteran's sleep condition is aggravated beyond its natural progression due to the medication required for the Veteran's service-connected coronary artery disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an eye condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.9, 4.127. 2. The criteria for entitlement to service connection for a sleep condition due to aggravation by a service-connected disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to March 1971. This matter is on appeal from June 2015 and March 2017 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, a hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in June 2019 when it was remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, the Veteran must show: (1) a current disability, (2) a disease, injury, or event in service, and (3) a causal link (nexus) between the claimed disability and the disease, injury, or event in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b). In this case, military personnel records reflect that the Veteran served in the Republic of Vietnam during the Vietnam War. 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 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Thus, the Veteran is presumed to have been exposed to herbicide agents in service. However, service connection is not presumed, as the Veteran's conditions are not enumerated under 38 C.F.R. § 3.309(e). The evidence of record therefore must establish a direct relationship between the Veteran's current disability and the presumed exposure to herbicide agents. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Eye Condition The Veteran contends that he is entitled to service connection for an eye condition. In this case, the Veteran was provided with a VA examination in January 2020 in which the examiner noted diagnoses of blepharitis (meibomian gland dysfunction (MGD)), bilateral age-related nuclear cataract, and bilateral drusen of macula. Thus, the first element of Shedden is satisfied. However, upon review of the record, the Board finds that the Veteran's eye condition was not incurred in service and is not otherwise related to an in-service injury, disease, or event. During the February 2019 hearing, the Veteran discussed wearing glasses prior to service because he "had real bad eyes." He stated that he broke his glasses before service and that "the military said that I did not need glasses," so he did not wear glasses during service, even though he had difficulties with his vision. He also discussed experiencing dry eyes. In January 2020, the Veteran was provided with a VA examination in which the examiner opined that the Veteran's eye condition was less likely than not incurred in or caused by service. She noted no in-service injury or illness involving the eyes in the record and noted that his eye conditions are not related to a past event. She noted that his cataract development is mild and age-related and that the dry eye problem is secondary to an untreated blepharitis/Meibomian gland dysfunction (MGD). She noted that regarding the Veteran's refractive conditions, he was farsighted as a child and that there is no notable amblyopia. In a separate examination report, the examiner noted that the record notes a diagnosis of "bilateral refractive amblyopia, mild" but that his visual acuity was "pretty equal in the two eyes and is only very mildly reduced to 20/30, some of which is due to limitation of a very high hyperopic prescription and somewhat to the cataract development." As this opinion reflects consideration of the nature of the Veteran's conditions in addition to his medical history, the Board assigns a high degree of probative value to this opinion. Regarding the Veteran's farsightedness, the Board notes that refractive errors of the eye are not considered diseases or injuries for which service connection is available, as they are conditions due to anomalies in the shape and conformation of the eye structures and generally of congenital or developmental origin. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, service connection may be granted for additional disability on top of the underlying refractive error from a superimposed disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). However, the record contains no indication of such a superimposed disability during service, for the reasons explained by the January 2020 VA examiner. See also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (holding that the presumption of soundness does not apply to congenital defects). The Board has also considered whether the Veteran's eye conditions are related to his exposure to herbicide agents in service. However, as noted above, the Veteran's eye conditions are not on the list of diseases presumptively associated with herbicide agent exposure and the evidence does not indicate an association between such exposure and his eye conditions. In summary, the Board finds the January 2020 VA opinion persuasive of a conclusion that the Veteran's eye conditions are not related to his service. As such, the Board finds that the evidence is not in approximate balance and that the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Sleep Condition The Veteran contends that he is entitled to service connection for a sleep condition, to include as secondary to his service-connected non-obstructive coronary artery disease and medication. In this case, VA treatment records note a diagnosis of poor sleep pattern and a January 2020 sleep study revealed the Veteran had poor sleep efficiency. During a December 2019 VA examination, the Veteran reported symptoms including difficulty staying asleep, fatigue, and frequent nightmares. The record reflects that such symptoms cause the Veteran functional impairment of earning capacity; thus, the Board concludes that the Veteran has a sleep condition. Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). Thus, the first element of Shedden is satisfied. Upon review of the record, the Board finds that the evidence is at least in equipoise that the Veteran's sleep condition is aggravated beyond its natural progression by the Veteran's service-connected coronary artery disease. During the February 2019 hearing, the Veteran discussed his sleep disorder and stated that his medication for his service-connected coronary artery disease causes the sleep disturbances. The Board finds that the Veteran's lay statements are sincere and credible. However, determining the effects of medication requires the education, training, and expertise of a medical professional who is qualified to offer such an opinion due to the complexity of the issue. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board assigns minimal probative value to these lay statements. In December 2019, the Veteran was provided with a VA examination in which the examiner stated that it is at least as likely as not that the Veteran's medication treatment for the service-connected coronary artery disease (Metoprolol) aggravated the sleep condition beyond its natural progression. The examiner discussed the Veteran's medical history and noted that the Veteran had reported persistence of nightmares since beginning the medication. She noted that although the Veteran had evidence of sleep disturbance and poor sleep pattern prior to treatment, there is evidence that the Veteran developed nightmares following the initiation of treatment. As this opinion reflects thorough consideration of the Veteran's condition and medical history, the Board assigns a high degree of probative value to this opinion and finds it persuasive of a conclusion that the Veteran's sleep condition has been aggravated by medications taken for his service-connected coronary artery disease. The Board notes that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). As explained by the January 2020 examiner, the record does not reflect that the Veteran experienced frequent nightmares prior to the treatment of his service-connected coronary artery disease. Thus, the evidence establishes a baseline from which aggravation can be ascertained in this case. As service connection on an aggravation basis may not be as favorable as an award of service connection on a direct basis or as caused by a service-connected disability, the Board has considered whether direct service connection is warranted in this case. In a separate examination report, the December 2019 VA examiner opined that the Veteran's sleep condition was less likely than not incurred in or caused by service. She stated that the record contains no evidence of a sleep disorder that began or occurred during service. She stated that there is no evidence of a sleep disorder or sleep complaints until 2002, which would be more than 30 years after service. As this opinion reflects thorough consideration of the Veteran's medical history, particularly when viewed in conjunction with the other examination report, the Board assigns a high degree of probative value to this opinion, and the Board finds that it is persuasive evidence against a finding that the Veteran's sleep condition is related to his service. The Board has also considered whether service connection is warranted based on whether the Veteran's service-connected coronary artery disease caused his sleep condition. The December 2019 VA examiner opined that it was less likely than not that his sleep condition was proximately due to or the result of his service-connected coronary artery disease. The examiner explained that the Veteran's medical records are first positive for complaints of sleep problems in 2002 when he endorsed sleep problems during a VA exam. At that time, the Veteran had no evidence or diagnosis of coronary artery disease and was not receiving any medication for treatment of coronary artery disease. The examiner noted that he continued to endorse sleep problems, stating during a November 2012 exam that he did not "sleep good" and reporting in November 2013 that he was sleeping poorly, and again in June 2014 that he did not sleep well. He had no diagnosis of coronary artery disease until 2015 when he had a heart catheterization and was diagnosed with non-obstructive coronary artery disease and he was started on metoprolol at that time. The examiner noted that the Veteran has since been started on other medications for treatment of his cardiac condition and concluded that since the Veteran's sleep problems clearly began prior to the non-obstructive coronary artery disease and subsequent treatment including medications, a nexus or secondary relationship is not plausible. The Board places great weight of probative value on this opinion as it is based on thorough review of the record and provides a complete rationale. The Board further finds that it is persuasive of a conclusion that the Veteran's sleep condition is not caused by his service-connected heart condition. Accordingly, the Board concludes that service connection for a sleep condition as due to aggravation from a service-connected disability is warranted, and the claim is granted to that extent. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS FOR REMAND 1. Entitlement to service connection for a skin condition is remanded. The Veteran contends that he is entitled to service connection for a skin condition. However, upon review of the record, the Board finds that further development is necessary to obtain an opinion that adequately addresses the etiology of the Veteran's skin condition. In this case, the Veteran was provided with a VA examination in December 2019 in which the examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated there is no evidence of a skin condition beginning during service and no evidence of chronicity of care for a skin condition beginning in service. However, in an April 2015 correspondence, the Veteran provided competent and credible statements that he has "always had sores on [his] body since [he] came back from Vietnam." Additionally, VA received a letter in December 2015 from the Veteran's sibling, who reported remembering "after his discharge complaining of a rash on his legs that would not heal." A medical examiner is not required to provide a detailed review of the Veteran's complete medical history or comment on every piece of favorable evidence in the record; however, the opinion must reflect consideration of the Veteran's medical history so that the Board's evaluation of the claimed disability is fully informed. Monzingo v. Shinseki, 26 Vet. App. 97, 105-07 (2012); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the December 2019 VA examination report does not reflect consideration of this credible and competent lay evidence, the Board finds that an addendum opinion is necessary to adequately address the etiology of the Veteran's condition. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. 2. Entitlement to service connection for breathing problems is remanded. The Veteran contends that he is entitled to service connection for breathing problems. However, upon review of the record, the Board finds that an additional opinion is necessary as the December 2019 opinion is inadequate for adjudication. In December 2019, the Veteran was provided with a VA examination in which the examiner diagnosed asthma and a pulmonary nodule. Regarding whether asthma was related to the Veteran's service, the examiner noted that the Veteran's service entrance examination report noted a history of asthma and the Veteran's medical records note a history of asthma since childhood. The examiner noted that there was no evidence in the Veteran's service treatment records of ongoing respiratory problems and that the Veteran's asthma continued to be classified as mild, which indicates no worsening of symptoms that occurred as a result of service, and the examiner further indicated that as asthma was diagnosed prior to service, it was not plausible that the condition was caused by any complaints during service. The opinion raises questions about whether the presumption of soundness applies in this case. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd, 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's asthma preexisted his military service as he reported in his medical history on his February 1969 entrance examination that he had asthma and the entrance examiner clarified that he had asthma as a child. Although he reported having asthma, his entrance examination is absent of any notations of defects, infirmities, or disorders. Therefore, asthma was not noted on entrance into service. However, the most competent and credible evidence of record shows that the Veteran's asthma did not manifest during the relevant period of military service. The Veteran did not report having any breathing problems during service and indicated at the February 2019 hearing that he could not remember when his breathing problems began. Although he has indicated his belief that asthma is due to breathing in Agent Orange during his service in Vietnam, he has not indicated that he actually experienced breathing problems while he was in Vietnam, and the other evidence of record does not indicate that breathing problems manifested in service. Therefore, the presumption of soundness does not attach. See Gilbert, 26 Vet. App. at 52. As a result, the December 2019 direct service connection opinion is inadequate since it appears to focus on the Veteran having asthma prior to service. Additionally, it does not address whether his respiratory condition could be due to his exposure to herbicide agents in Vietnam. As such, the Board concludes that remand is needed to obtain a new medical opinion that specifically addresses such exposure. Regarding secondary service connection, the examiner opined that the condition is less likely than not proximately due to or the result of a service-connected condition. The examiner noted that coronary artery disease can produce dyspnea in some individuals but does not cause or contribute to a diagnosis of asthma. However, as noted above, service connection may be established on a secondary basis for a disability caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The December 2019 VA examination report does not address whether the Veteran's asthma or pulmonary nodule is aggravated (i.e., worsened beyond its natural progression) by his service-connected coronary artery disease. Thus, an additional opinion must be obtained to determine whether secondary service connection is warranted in this case. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2020 to the present. 2. After completing the development requested in item 1, return the claims file to the December 2019 VA examiner, or another appropriate clinician if that examiner is not available, for review and an addendum medical opinion. The reviewing clinician should be requested to provide opinions (based on a review of the record) to answer the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's skin condition was incurred in or related to an in-service injury, disease, or event, to include his presumed exposure to herbicide agents? The examiner must specifically address the competent and credible lay reports provided by the Veteran and his sibling regarding onset and continuity. (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's asthma or pulmonary nodule was incurred in or related to an in-service injury, disease, or event, to include his presumed exposure to herbicide agents? In providing an opinion on this question, the examiner should note that despite the history of having asthma in childhood, the Veteran is presumed sound as to having asthma on entrance to service. As such, the examiner should not consider the reports of the Veteran having asthma prior to service in providing an opinion. (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's asthma or pulmonary nodule, is caused or aggravated (i.e., worsened beyond its natural progression) by service-connected coronary artery disease and medication taken for the condition? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.