Citation Nr: 21007416 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-34 175A DATE: February 9, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. A rating in excess of 10 percent for hypertension is denied. FINDINGS OF FACT 1. The Veteran’s OSA condition had its onset in to service. 2. The Veteran’s service-connected hypertension has required continuous medication for control of his condition and his diastolic pressure predominantly is less than 110 and his systolic pressure predominantly is less than 200. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1979 to February 1992 and from February 1993 to June 1993, including service in Kuwait. This case was initially remanded by the Board in August 2016. In an October 2017 decision, the Board denied service connection for obstructive sleep apnea and a higher raring for hypertension. The Veteran appealed the Board’s October 2017 decision to the United States Court of Appeals for Veterans Claims (CAVC) pursuant to a joint motion for remand, granted an order vacating the Board’s October 2017 decision and remanding the case for additional development. In August 2019, the Board remanded these issues for further development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a “qualifying” chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term “objective indications of chronic disability” includes both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: Fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: Chronic fatigue syndrome; Fibromyalgia; Irritable bowel syndrome; Any diagnosed illness that the Secretary determines warrants a presumption of service-connection; or Any other illness that the Secretary determines meets the following criteria for a medically unexplained chronic multi-symptom illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). The term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(4). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. Compensation shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(c). The United States Court of Appeals for the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. OSA The Veteran seeks service connection for his OSA condition since he states that is related to service and his service-connected hypertension. See Attorney brief (January 2021). The Veteran was diagnosed with sleep apnea, thus establishing the first element for service connection. See VA medical examination (February 2020). Additionally, he continued his medical treatment for his OSA condition at VA facilities, to include the use of a CPAP machine. Id and see also VA medical treatment records (November 2013 and August 2019). The Board finds that the Veteran competent and credible statements and records show that his OSA is related to service and his hypertension. See VA medical examination (February 2020). Additionally, his spouse has competently and credibly reported that while in service, she witnessed the Veteran having sleeping problems and snoring in service. See Spouse statement (May 2019). Indeed, the record shows breathing problems while sleeping in service. See STR (May 1979). The Board finds that the medical and lay evidence linking the Veteran’s OSA condition to service is probative, competent and credible. Additionally, the Veteran has various outpatient treatment records of his OSA disability and treatment. Further, the Board also finds that the competent and credible Veteran’s and spouse statements show that his OSA problems began during service and have been recurrent since that time. The Veteran is competent to report his OSA symptoms that began in service and the Board finds the Veteran’s statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. The Board finds that the medical and lay evidence, shows that the Veteran’s OSA disability had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s OSA disability had its onset during his period of military service. As such, service connection is granted. See 38 C.F.R. § 3.303 (a). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). 2. Hypertension The Veteran is currently rated under DC 7101 at 10 percent for hypertension from July 1, 1993. The Veteran seeks a higher rating. See Attorney brief (January 2021). Under DC 7101, a 10 percent rating is assigned for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or where an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. A 40 percent is warranted for diastolic pressure predominantly 120 or more. A maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. The Veteran’s hypertension is treated with medication. However, this is consistent with the current 10 percent rating assigned for this disability. Further, as the rating criteria for hypertension specifically contemplates the use of medication to ameliorate symptoms, a higher rating may not be assigned based solely on the fact that the Veteran uses medication to treat his symptoms. Cf. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), (“[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication...the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication.”); McCarroll v. McDonald, 28 Vet. App. 267 (2016) (the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medications) Here, the Board finds that the Veteran’s hypertension is not manifested by diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. Thus, the criteria for a rating in excess of 10 percent have not been met. The Board acknowledges that the Veteran’s reports that his hypertension is labile requiring continuous medication to control his symptoms and that it results in dizziness, forcing him to sit or lie down. Additionally, the record shows that he has had diastolic readings over 110 and systolic readings over 200. See Attorney brief (January 2021). However, the medical evidence shows that his diastolic pressure readings have predominantly remained less than 110 and his systolic pressure has also predominantly remained less than 200. Indeed, his latest VA examination, show his systolic pressure was no more than 142 and his diastolic pressure was no more than 82. See VA medical examination (February 2020). An earlier VA examination from November 2018 shows that is systolic pressure was no more than 128 and his diastolic pressure was no more than 70. On average, the VA examiner indicated that his blood pressure reading is 121/60. See VA medical examination (November 2018). Considering the Veteran’s reports of lay and the objective medical findings, the Board finds that preponderance of the evidence shows that the criteria for a rating in excess of 10 percent have not been met. In reaching this determination, the Board emphasizes that the vast majority of his diastolic and systolic readings remain predominantly lower than 200/110. In light of the foregoing, the Board finds that the Veteran’s hypertension does not meet or nearly approximate the criteria for a rating in excess of 10 percent. As such, a rating in excess of 10 percent is not warranted, to include as a “staged” ratings are not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.