Citation Nr: 21011153 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-41 932 DATE: March 1, 2021 ORDER Entitlement to service connection for sleep apnea, to include as due to in-service herbicide agent exposure or as secondary to service-connected disease or injury is denied. Entitlement to service connection for atrial fibrillation, to include as due to in-service herbicide agent exposure or as secondary to service-connected disease or injury is denied. FINDINGS OF FACT 1. Sleep apnea did not manifest during service and is not related to service, or in-service herbicide exposure. 2. Sleep apnea is not caused or aggravated by a service-connected disease or injury. 3. Atrial fibrillation did not manifest during service and is not related to service, or in-service herbicide exposure. 4. Atrial fibrillation is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred or aggravated by service, and is not proximately due to or a result of, or aggravated by a service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Atrial fibrillation was not incurred in, or aggravated by service, and is not proximately due to or a result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 5013, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to July 1971. The issues currently before the Board were previously remanded in a February 2020 decision. A February 2020 medical opinion was issued after the remand. In August 2020, an addendum medical opinion was issued. Service Connection 1. Entitlement to service connection for sleep apnea, to include as due to in-service herbicide agent exposure or as secondary to service-connected ischemic heart disease 2. Entitlement to service connection for atrial fibrillation, to include as due to in-service herbicide agent exposure or as secondary to service-connected ischemic heart disease Veterans are entitled to compensation if they develop disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran 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 -the so-called ‘nexus’ requirement.” See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Neither sleep apnea nor atrial fibrillation are chronic diseases listed under 38 C.F.R. § 3.309(a), and they are not recognized as disabilities associated with herbicide exposure under 38 C.F.R. § 3.309(e). Corresponding presumptions do not apply. However, service personnel records verify the Veteran’s service in Vietnam. Therefore, he is presumed to have been exposed to herbicides in service. 38 U.S.C. § 1116(f). Service connection is also warranted for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The Veteran contends that his sleep apnea is due to his presumed exposure to herbicides, but alternatively contends that his sleep apnea was either proximately caused by or aggravated by his service-connected ischemic heart disease. Similarly, the Veteran contends that his atrial fibrillation is due to his presumed exposure to herbicides, but alternatively contends that it was either proximately caused by or aggravated by his service-connected ischemic heart disease. The Board reviewed the Veteran’s service treatment records. Neither condition was present during his period of active service; STRs do not show any complaints of, treatment for, or diagnosis of atrial fibrillation or sleep apnea. The July 1971 separation physical examination showed normal clinical evaluation of the heart. However, on his medical history the Veteran marked “yes” for, at any time, having pain or pressure in his chest. He denied a history of frequent trouble sleeping. A February 2020 medical opinion from a VA examiner concluded that it was less likely than not that the Veteran’s sleep apnea is related to service, including his presumed exposure to herbicides. The examiner reasoned that “Review of the medical record finds absence of complaint of, testing or treatment for, diagnosis of, or entertainment of the diagnosis of sleep apnea during active military service or within two years of discharge from military service…There is currently no established cause and effect relationship between herbicide exposure in Vietnam and sleep apnea.” Similarly, the February 2020 VA examiner concluded that it was less likely than not that the Veteran’s atrial fibrillation is related to service, including his presumed exposure to herbicides. The examiner reasoned that “re-review of the medical record finds absence of complaint of, testing or treatment for, diagnosis of, or entertainment of the diagnosis of [atrial fibrillation] during active military service or within two years of discharge from military service…There is currently no established cause and effect relationship between herbicide exposure in Vietnam and [atrial fibrillation].” The February 2020 VA examiner concluded, and affirmed in an August 2020 addendum medical opinion that the Veteran’s sleep apnea is not due to or aggravated by his service-connected heart disease. The examiner stated that “The veteran does not have ischemic heart disease. He has mild coronary artery disease (essentially none) that does not cause ischemia. While there may be claimed associations between [ischemic heart disease] and [obstructive sleep apnea], there is no pathophysiologic mechanism for stenosed coronary arteries to cause collapse of the velo/posterior pharynx. There is no established cause and effect relationship.” Similarly, the February 2020 VA examiner concluded, and affirmed in an August 2020 addendum medical opinion that the Veteran’s atrial fibrillation is not due to his service-connected heart disease. The examiner, after reiterating that the Veteran does not have ischemic heart disease, but has mild coronary artery disease, opined “atrial fibrillation onset prior to diagnosis of [coronary artery disease] and the private doctor specifically stated that the [atrial fibrillation] was not due to ischemia.” The VA examiner also concluded that the Veteran’s atrial fibrillation was not aggravated beyond the normal progress of the disorder by the Veteran’s service-connected ischemic heart disease. The VA examiner wrote “The veteran’s [atrial fibrillation] is stable and controlled on medication. The evidence finds absence of aggravation of [atrial fibrillation] by minimal [coronary artery disease].” In an August 2020 addendum medical opinion, the VA examiner clarified her February 2020 findings regarding causation and aggravation for both sleep apnea and atrial fibrillation. The examiner affirmed her February findings. She clarified that, with regard to review of more recent medical files for the Veteran that “The presence of coronary artery calcification is not synonymous with luminal stenosis, obstruction or ischemia. In general, the extent of coronary calcifications and stenosis is not a one-to-one relation. In other words, the presence of coronary calcifications does not necessarily signify narrowing of the coronary arteries… The ‘gold standard’ for diagnosing coronary artery disease and stenosis is Coronary Angiography. For this Veteran, coronary angiography showed minimal non-obstructive coronary artery disease…this is essentially normal and has no clinical significance and causes no functional limitations. He has no ischemia.” In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the February 2020 and August 2020 VA medical opinions regarding the Veteran’s sleep apnea and atrial fibrillation as probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Further evidence weighs against the claim that the Veteran’s sleep apnea and atrial fibrillation as directly related to service. The Board notes that pursuant to Section 3 of the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11, VA entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. The NAS was required to submit reports of its activities every two years. The VA Secretary, under the authority of the Agent Orange Act of 1991 and based on studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-608 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); 74 Fed. Reg. 21,258-260 (May 7, 2009). As stated previously, both sleep apnea and atrial fibrillation are not among the listed diseases as presumptively related to herbicide exposure. 38 C.F.R. § 3.309(e). Therefore, the evidence (including VA Secretary’s determination based on the National Academy of Sciences’ findings discussed above) indicates a non-relationship between the Veteran’s sleep apnea, atrial fibrillation and in-service herbicide exposure. The Board finds that the report of the NAS is of great probative value in evaluating the Veteran’s claim. Its conclusions are based on nationwide, peer-reviewed studies conducted over time with specific focus on the veteran population. The probative evidence of record does not contradict the findings. Therefore, the Board determines that the evidence supports a finding that the Veteran’s sleep apnea and atrial fibrillation was not incurred in, or aggravated by, service, to include exposure to herbicides. The Board has considered the lay statements of the Veteran regarding his sleep apnea and atrial fibrillation. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner’s opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner’s medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of sleep apnea or atrial fibrillation during active service, or within a year of separation. In sum, there is insufficient competent and probative evidence linking the Veteran’s sleep apnea and atrial fibrillation to service or were caused or aggravated by a service-connected disease or injury. The contemporaneous records establish that relevant systems were normal at separation and service treatment records do not document any relevant notations. The more probative evidence establishes that the Veteran did not have sleep apnea and atrial fibrillation during service and that such disorders are not related to any event in service, including presumed herbicide exposure. The evidence establishes that the remote onset of sleep apnea and atrial fibrillation is unrelated (causation or aggravation) to service or a service-connected heart disability. The Board is aware of the medical opinion that the Veteran does not have ischemia. Service connection has been granted and assigned a 60 percent evaluation. The issue before the Board is whether there is a relationship between his heart disease and sleep apnea or atrial fibrillation. The examiner has established that there is no relationship (causation or aggravation) between ischemia and fibrillation or apnea. The fact that the examiner does not accept that the Veteran has a service-connected disease does not render the opinion inadequate. The opinion was broad enough to establish that there is no relationship between apnea or fibrillation and ischemia in this Veteran. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, 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.