Citation Nr: 21006021 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-20 666 DATE: February 3, 2021 ORDER The claim of entitlement to service connection for anxiety disorder is denied. The claim of entitlement to service connection for diabetes mellitus (DM), to include as secondary to asthma/bronchitis is denied. The claim of entitlement to service connection for hypertension (HTN), to include as secondary to DM and/or obstructive sleep apnea (OSA), is denied. FINDINGS OF FACT 1. The Veteran is not shown to have (or during the pendency of the claim to have had) a psychiatric disorder, to include anxiety. 2. The preponderance of the evidence of record is against a finding that the Veteran’s DM is causally related to, or was aggravated by his military service, to include secondary to service-connected asthma/bronchitis. 3. The preponderance of the evidence of record is against a finding that the Veteran’s HTN is causally related to, or was aggravated by his military service, to include secondary to service-connected OSA. CONCLUSIONS OF LAW 1. The criteria for service connection for anxiety disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for DM have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). 3. 2. The criteria for service connection for HTN have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. § 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1990 to April 1993 and December 1996 to March 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2015, April 2016, and September 2017 rating decisions by the Department of Veterans Affairs (VA). In July 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In November 2019, the Board remanded the issues on appeal for additional evidentiary development. They have now been returned for further appellate consideration. Service Connection Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime) (2012); 38 C.F.R. §§ 3.303(a) (2019). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. §§ 3.303(d) (2019). Generally, the evidence 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. 38 C.F.R. §§ 3.303(a) (2019); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table)). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. §§ 3.310 (2019). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) (2019) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service, such as arthritis, or during the applicable presumptive period. In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. § §§ 3.307, 3.309 (2019). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b) (2019). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. §§ 3.309(a) (2019), and, thus, such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § § 3.309(a) (2019), such as DM and HTN. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a) (2012). The Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C. § 1154(a) (2012), 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, (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran’s claim file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for anxiety. It is contended that service connection is warranted for anxiety. A review of the service treatment records (STRs) is negative for psychiatric complaints or diagnosis. Post service private and VA records are also negative for such. At the November 2019 hearing, the Veteran testified that he experienced anxiety and thought that he was medication for the disorder. The threshold question that must be addressed here (as in claim seeking service connection on either a direct or secondary basis) is whether there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disability for which service connection is sought (anxiety disorder). In the absence of proof of current disability there is no valid claim for service connection. See 38 U.S.C. § 1110 (2012); see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board’s review of the record found nothing showing that the Veteran has received a diagnosis of a current psychiatric disability, to include anxiety disorder, by a medical professional. There are no contemporaneous records showing a diagnosis of such disability, and a review of the Veteran’s list of medications, to include in November 2019, does not reflect a mental health prescription. As noted above, the Veteran has not identified any medical professional who has provided him treatment for the psychiatric disorder or diagnosed a psychiatric disorder post service (in particular during the pendency of the claim). While the Veteran is competent to observe that he feels anxious under certain circumstances, whether there is psychiatric disability underlying such occasions is a medical question. It requires medical expertise. He is a layperson, and his own opinion is not probative evidence in the matter. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because there is no current disorder that could be related to an event, injury, or disease in service, the Board finds that a VA examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i) (2019); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease); see also Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran’s conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). As the competent evidence of record shows that a psychiatric disability, to include anxiety disorder, has not been diagnosed during the pendency of this claim, he has not met a threshold requirement for substantiating a claim of service connection for such disability, and has not presented a valid claim of service connection for anxiety disorder. See Brammer, supra. Accordingly, the appeal seeking service connection for anxiety disorder must be denied. Entitlement to service connection for DM. It is the Veteran’s primary assertion that he has DM that is secondary to service-connected asthma/bronchitis. In particular, he has alleged that DM is related to weight gain caused by his asthma. The STRs are negative for DM. VA records in 2010 reflect that a fasting blood glucose (FBG) test should be accomplished to “evaluate metabolic d vs Diabetes due to Obesity.” Subsequently dated VA records in July 2015 reflect awareness of abnormal testing suggestive of impaired FBG or pre-diabetes. A March 2016 record reflects diagnosis of DM, but it noted that he had not started mediations for treatment yet. VA records dated later that year and thereafter, reflect diagnosis of DM, type II, and the taking of medications for control of the disability. The Veteran was given a DM VA examination in August 2017. The VA examiner opined that the Veteran’s diabetes mellitus was less likely than not proximately due or the result of his bronchial asthma because asthma was not a risk factor for diabetes, and a diagnosis of asthma did not prevent exercise. The opinion was inadequate because it did not discuss aggravation. Additional VA examination (based on review of the claims file) was conducted in September 2020. It was noted that DM was controlled by medications and a restricted diet. It was the examiner’s opinion that DM was less likely than not (less than 50 percent probability) proximately due to or the result of service-connected asthma. For rationale, it was noted that his asthma was controlled by prescribed in halters. He did not require any oral steroids that would lead to an elevated blood sugar. Moreover, even if he had, it would have been a temporary rise in blood sugars and would not persist years later. His DM, type II, was more likely hereditary and due to his weight. She noted that his diagnoses also included fatty liver disease and hyperlipidemia. This chain of related metabolic disorders was more likely that not the cause of his diabetes. There was no evidence that his DM was worsened by his asthma. Recent testing had shown that his DM, type II, was improving. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran’s DM is related to, or aggravated by, his military service, to include secondary to a service-connected asthma/bronchitis. As noted above, the record is negative for a diagnosis of DM until many years after service. There is no medical report establishing a nexus between the post service diagnosis of DM and military service. As for the assertion that DM is secondary to asthma/bronchitis, the September 2020 VA examiner concluded that the Veteran’s DM was less likely than not proximately due to or the result of service-connected asthma/bronchitis. The examiner explained that the etiology of his diabetes was more likely hereditary and due to his weight and as reported upon VA examination in 2017, his weight gain was not attributable to his asthma as the disability did not preclude exercise and because asthma was not a risk factor for diabetes. The 2020 examiner further concluded that there was no aggravation of DM due to service-connected asthma/bronchitis as recent testing showed that his DM, type II, was improving. Based on the above, the Board finds service connection for DM is not warranted. The Board notes that the Veteran may sincerely believe that his DM is causally related to his military service or service-connected disability. However, the most probative clinical etiology opinions with regard to the Veteran’s claimed condition are against such findings. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexity of the claimed disability for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau, supra. As to the adequacy of the September 2020 examination, the Board finds that the conclusions reached were based upon sound reasons and bases. The medical opinion included a consideration of the date of onset of the disease entity, which has been substantially consistent with the Veteran’s own lay reporting and evidence he has submitted through counsel. Indeed, VA’s duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it “takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran’s prior medical history and examinations. Stefl, 21 Vet. App. at 123. Consequently, we find the September 2020 VA medical opinion to be adequate for the purposes of rendering this decision. In addition, we note that neither the Veteran nor his attorney have alleged any deficiencies in developing this claim in this regard. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 (2012), and 38 C.F.R. § 3.102 (2019), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Service Connection for HTN. It is claimed that HTN is associated with DM and/or sleep apnea. Review of the file, to include the Veteran’s STRs, and post service treatment records, is negative for a diagnosis of HTN until approximately 2015 when a VA physician noted that the Veteran presented with the condition. Subsequently dated records do not reflect actual diagnosis of HTN or the taking of medication for treatment although the importance of continual control of blood pressure, blood sugar, and cholesterol level was stressed to the Veteran in January 2020. Blood pressure readings in recent hears have include 137/73 in November 2017, 139/85 in April 2018, 143/85 in September 2018, 134/73 in January 2019, 130/93 in September 2019, 142/62 in January 2020, and 135/94 in March 2020. VA records reflect that the Veteran was scheduled for a sleep study in 2015 and that OSA was initially diagnosed in 2016. In a September 2020 VA report, the examiner opined that the Veteran’s HTN was less likely than not due to sleep apnea. For rationale, she noted that it appeared that his HTN predated his diagnosis of sleep apnea. His blood pressure readings were reviewed, and there was no evidence that such were aggravated beyond natural progression. Moreover, his blood pressure was in good control. Initially, as to direct service connection, HTN was not shown until many years post service, and no medical evidence of a nexus between the diagnosis of such and military service has been presented. As to the assertion that HTN is secondary to DM, this claim is denied as a matter of law in that service connection for DM has been denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Moreover, in this case, there is no competent evidence linking the Veteran’s HTN to his service-connected asthma/bronchitis. To the extent that the Veteran asserts a relationship to this service-connected disease, he has not established his competence to do so. See Kahana and Jandreau, supra. Moreover, his statements are outweighed by the September 2020 VA physician who found no link between HTN and sleep apnea. She noted that the Veteran’s HTN preceded the diagnosis of sleep apnea, and there was no aggravation of the Veteran’s blood pressure readings upon her review. The adequacy of the September 2020 examination is not in question as the conclusions reached were based upon sound reasons and bases. The medical opinion included a consideration of the date of onset of the disease entity, which has been substantially consistent with the Veteran’s own lay reporting and evidence he has submitted through counsel. See Stefl and Barr, supra. (Continued on next page)   In short, for the reasons and bases set forth above, the Board concludes that the evidence weighs against granting service connection for HTN, to include as secondary to a service-connected disease or injury. On this matter, the preponderance of the evidence is against the claim; the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert, supra. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.