Citation Nr: 21011356 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-39 375 DATE: March 1, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected anxiety disorder and depressive disorder not otherwise specified (NOS) is granted. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected anxiety disorder and depressive disorder is denied. FINDINGS OF FACT 1. The probative and competent evidence of record shows that the Veteran’s hypertension is etiologically related to service. 2. The probative and competent evidence of record does not show that the Veteran’s OSA is etiologically related to service or caused or aggravated by his service-connected anxiety disorder and depressive disorder NOS. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria for service connection for OSA, to include as secondary to service-connected anxiety disorder and depressive disorder NOS, have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to September 1987 in the Army. He also served in the United States Army Reserve (USAR) from October 1987 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing is of record. The Board remanded this matter in April 2018 and November 2019. The Board finds there has been substantial compliance with its November 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1155; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may be presumed for certain chronic diseases, including hypertension, which develop to a compensable degree within one year after separation from service, even though there is no evidence of that disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). However, this presumption does not apply where the claim is based on a period of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA), but instead only applies if the claim is predicated on active duty service. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military service includes (1) active duty (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a) (2016). Service connection is available for injuries and diseases incurred during active duty or ACDUTRA, but (except for the exceptions listed) only for injuries, and not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves. 38 C.F.R. § 3.6 (c) (2019). INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C. § 101 (23) (2012); 38 C.F.R. § 3.6 (d) (2019). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Alternatively, when a disease listed in 38 C.F.R. § 3.309 (a) is manifested in service, but not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the April 2011, September 2014, November 2018, August 2019, and February 2020 VA opinions were found to be inadequate for a variety of reasons. Specifically, the April 2011 and September 2014 VA opinions did not provide a complete rationale regarding whether the Veteran’s hypertension and OSA were caused or aggravated by the Veteran’s service-connected anxiety disorder and depressive disorder NOS. The November 2018 VA opinion was inadequate because it did not fully discuss the findings in the prior VA examinations or the medical treatise pursuant to the April 2018 Board remand. The August 2019 VA opinions were found to be inadequate because it was based on an inaccurate factual premise, and the examiner reiterated her findings from the November 2018 VA opinion as her rationale. Additionally, the examiner did not discuss the medical treatises of record. Finally, the February 2020 VA opinions were inadequate because the examiner did not provide adequate rationale or discuss the findings in the April 2011 and September 2014 VA examinations, as well as the medical treatises referenced to in the record. Therefore, the Board will only address the adequate portions, if any, of these VA examinations and opinions in the below analysis for both service connection claims. 1. Entitlement to service connection for hypertension, to include as secondary to service-connected anxiety disorder and depressive disorder not otherwise specified (NOS) The Veteran contends that his currently diagnosed hypertension began during service. Service treatment records during active duty show that the Veteran had elevated blood pressure of 124/92 in January 1986. In a September 1989 private treatment record, the Veteran was noted to have elevated blood pressure of 140/110. Service treatment records show that in February 1999, during his time in the Army Reserves, the Veteran was noted to have hypertension. In a January 2001 private treatment record, an elevated blood pressure of 128/96 was shown. A January 2002 private treatment record showed that the Veteran had been diagnosed with hypertension. Additional post-service treatment records show consistent diagnosis and treatment of hypertension. In an April 2011 VA examination, the Veteran said he was diagnosed with hypertension in 2000. He was on medication for hypertension. The examiner opined that the Veteran’s hypertension was not a continuation of when the Veteran was on active duty. The examiner reasoned that the Veteran had one episode of documented elevated blood pressure (124/92) while in service, noted during an acute knee injury, on January 1, 1986. The Veteran had documentation of elevated blood pressure in February 1999, when he was advised of need for lifestyle modification. The examiner said that the Veteran reported he was diagnosed with hypertension in 2000; however, records indicated treatment was initiated in December 2001. At the August 2016 Board hearing, the Veteran testified that his blood pressure increased when he became angry. He also referred to a VA website that showed there was a relationship between PTSD, sleep apnea, and high blood pressure. As stated above, VA opinions were obtained in November 2018, August 2019, and February 2020. However, these opinions are inadequate and will not be discussed. In the June 2020 VA opinion, the examiner said that the Veteran correctly stated that blood pressure elevations might be associated with stressful situations; however, while transient elevations in blood pressure might occur in stressful situations, these were not recognized as resulting in chronic aggravation of underlying hypertension. Mayo Clinic stated that “high levels of stress can lead to temporary increase in blood pressure.” The examiner noted that the Veteran referred to only needing an approximate balance of positive and negative evidence to prevail on a claim and said that the Veteran appeared to falsely equate “relationship” with causality, and/or an “approximated balance of positive and negative evidence in order to prevail,” without providing any such “balance of positive and negative evidence.” Looking to the April 2011 VA examination findings, the examiner determined that the opinion was supported by the rationale provided and concurred with the April 2011 VA examiner. The examiner said that the medical treatises referred to by the Veteran did not posit causality of sleep apnea or hypertension by PTSD. The examiner opined that it was less likely as not that the Veteran’s hypertension was caused or aggravated by the service-connected anxiety disorder and depressive disorder. The examiner reasoned that neither the American College of Cardiology nor the American Heart Association listed anxiety or depressive disorders as permanently causing or aggravating hypertension. While transient elevations in blood pressure may occur in stressful situations, these were not recognized as resulting in chronic aggravation of underlying hypertension. Overall, the Board finds the conclusions drawn by the examiners as to the likelihood of an etiological relationship between the Veteran’s hypertension and service are not required to make a determination in the case at hand. Initially, the Board finds that the Veteran’s contention that he is entitled to service connection on a direct basis based on medical examination findings in 1999, which date from his period of Reserve duty, are without merit. At the time of this examination, the Veteran was not on active duty, but was a Reservist. As hypertension is not included in the exceptions to the limitations of 38 C.F.R. § 3.6 (a), a diagnosis of hypertension would not provide evidence incurrence of disability during service for direct service connection. See Brooks v. Brown, 5 Vet. App. 484 (1994). However, based on a review of all the evidence of record, the Board finds that service connection for hypertension is warranted. Service treatment records show elevated blood pressure during active duty in 1986, and a diagnosis of hypertension during Reserve duty in 1999. Thus, giving the Veteran the benefit of the doubt, the Board finds the Veteran credible. There is consistent evidence of elevated blood pressure and diagnosis and treatment of hypertension from the time of service, following service, to the present. Thus, the Board finds that there is evidence of continuity of symptomatology from service to the present for the Veteran’s hypertension. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for the Veteran’s hypertension is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected anxiety disorder and depressive disorder not otherwise specified (NOS) The Veteran contends that his currently diagnosed OSA is related to his anxiety disorder and depressive disorder NOS. Service treatment records are silent for complaints, treatment, or diagnosis of OSA. In a September 2010 VA treatment record, OSA with hypersomnia was diagnosed. In a September 2014 VA examination, the examiner noted diagnosis of OSA in 2009. There was no further follow up of OSA and its treatment since April 2013. As stated above, the Board notes that the opinion was found inadequate. At the August 2016 Board hearing, the Veteran testified that he was unable to sleep due to his PTSD. He said that the doctors who did his sleep study tied his sleep apnea to his PTSD. He also referred to a VA website that showed there was a relationship between PTSD, sleep apnea, and high blood pressure. As stated above, VA opinions were obtained in November 2018, August 2019, and February 2020. However, these opinions are inadequate and will not be discussed. In the June 2020 VA opinion, the examiner looked at the September 2014 VA examination and concurred with the opinions rendered at that time, but with a different rationale, as currently there was no consensus medical opinion that PTSD caused or aggravated sleep apnea. The examiner said that the medical treatises referred to by the Veteran did not posit causality of sleep apnea or hypertension by PTSD. The examiner opined that it was less likely as not that the Veteran’s sleep apnea was caused or aggravated by service-connected anxiety disorder and depressive disorder. The examiner reasoned that neither the American Academy of Sleep Medicine nor Mayo Clinic included anxiety or depressive disorders as a cause/aggravating factor of sleep apnea. The examiner said there was no such aggravation medically documented. The examiner looked at the August 2008 notation that there were more REM sleeps in PTSD and therefore sleep apnea was aggravated. However, the examiner stated that there was no evidence of actual increase in REM sleep by PTSD in the Veteran, and so rendering that opinion mere supposition. Additional post-service treatment records are silent for any credible nexus between the Veteran’s sleep apnea and service and/or his service-connected anxiety disorder and depressive disorder. Overall, the Board finds that the competent and probative evidence of record does not show that the Veteran’s OSA is related to service or his service-connected anxiety disorder and depressive disorder. The Board acknowledges that the Veteran has submitted medical literature on the associations between psychiatric conditions and sleep apnea. However, the referenced literature does not refer specifically to the Veteran himself, nor is specific to the particular circumstances and events described by him with respect to his in-service and post-service medical history. Therefore, the Board finds that this generic medical literature lacks probative value. See Sacks v. West, 11 Vet. App. 314 (1998) (holding that generic medical literature, which does not apply medical principles regarding causation or etiology to the facts of an individual case, does not provide competent evidence to satisfy the nexus element for an award of service connection). Ultimately, regarding direct service connection there are no in-service complaints, treatment, or diagnosis for OSA, and, in fact, the Veteran has not asserted that his OSA is directly related to service. The Veteran was not diagnosed with sleep apnea until many years after service, and there is no indication that his sleep apnea is related to service. Regarding secondary service connection, the Board finds the June 2020 VA opinion finding that the Veteran’s OSA was not caused or aggravate by his service-connected anxiety disorder and depressive disorder most probative as it considered all the evidence of record including the Veteran’s lay statements, prior VA opinions, and the medical treatises provided by the Veteran. The Board acknowledges that the Veteran has offered his own opinion on etiology, stating that his sleep apnea is causally related to his anxiety and depressive disorders. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d at 1372 (Fed. Cir. 2007). Therefore, the Board affords more probative weight to the June 2020 VA examiner’s opinion than the Veteran’s own contentions. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the lack of evidence showing a nexus between the Veteran’s OSA and service and/or his service-connected anxiety disorder and depressive disorder, the preponderance of the evidence is against the claims for service connection; there is no doubt to be resolved. Service connection for OSA, to include as secondary to the service-connected anxiety disorder and depressive disorder NOS is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.