Citation Nr: 21010430 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-22 892 DATE: February 24, 2021 ORDER Entitlement to service connection for a heart murmur is denied. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran had heart murmur at any time during the appeal. 2. The Veteran’s back disability is proximately due to his service-connected panic disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart murmur have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1965 to June 1967. In July 2018, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive VA examinations for his heart murmur and sleep apnea disabilities. The Veteran received new VA examinations in May 2019, and in October 2019, the examiner provided a supplemental opinion for the Veteran’s sleep apnea disability. The VA opinions considered the evidence of record and provided adequate rationale for the nexus opinions for each disability. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Heart Murmur The Veteran’s May 1967 separation examination showed evidence of a heart murmur. However, as noted by the May 2019 VA examiner, the medical evidence does not show that the Veteran has a current heart murmur disability. The Veteran’s VA medical records and private medical records consistently document no evidence of a heart murmur. Likewise, there was no heart murmur present at the May 2019 VA examination. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, evidence prior to the date of claim must be considered in determining whether the current disability requirement has been met. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, the above evidence reflects that the Veteran does not have a heart murmur. To the extent the Veteran asserts that he has a current heart murmur disability, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board considers the Veteran’s testimony that he was told he has a chronic condition that caused his heart murmur. In this case, however, the Veteran’s assertions as to diagnosis and etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. He does not have the medical training needed to make a complex determination such as this. The Board finds the consistent medical treatment records documenting no evidence of a heart murmur to be more probative than the Veteran’s more general lay statement concerning his heart condition. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 (2018); see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, as there is no evidence of a current disability, service connection for a heart murmur is not warranted. 2. Sleep Apnea 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 or injury. 38 C.F.R. § 3.310(a) (2020). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2020); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran received a VA examination in May 2019 for his sleep apnea claim. The examiner found that there was no evidence of a nexus to service for his sleep apnea because the record did not show that his sleep apnea was present in service. The Veteran stated the onset of his sleep disturbances was in 1992. However, when considering the possible relationship between his sleep apnea and service connected panic disorder, the examiner opined that it was at least as likely as not his sleep apnea was proximately due to his panic disorder. The examiner noted that his sleep disorder began after the service connection of his psychiatric condition and is “the direct result of the antecedent condition.” The Board notes that while the May 2019 VA examiner found there was no evidence of the Veteran’s sleep apnea in service, he testified at his Board hearing that he had issues with snoring in service. He also testified that his wife told him he stopped breathing during his sleep. Additionally, the Board notes that in an October 2019 VA opinion, an examiner noted the Veteran’s sleep apnea was not aggravated by his service connected panic disorder. In considering all the evidence, however, the Board finds the preponderance of the evidence is for the Veteran’s claim. The May 2019 positive secondary nexus opinion is afforded high probative weight. The examiner based his opinion on a review of the Veteran’s file and medical literature. As the evidence is for the Veteran’s claim the Board finds secondary service connection for sleep apnea is warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). REASONS FOR REMAND The Veteran received a VA examination for his back disability in June 2017, but it was inadequate. The examiner’s negative rationale was based on the lack of evidence showing a chronic disability. The Veteran, however, stated that he has experienced back pain since his in service injury. His lay statements must be considered in the nexus opinion and thus a new VA opinion is necessary. The matters are REMANDED for the following action: 1. Return the Veteran’s claims file to the examiner who conducted the June 2017 back VA examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability began during active service, is related to an incident of service, including the March 1967 treatment record documenting his back pain and issues with frequent urination, or began within one year after discharge from active service. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran’s statements that he has experienced chronic back pain since service are true. If there is a medical reason to doubt the veracity of his statements, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.