Citation Nr: 21014680 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 08-23 604 DATE: March 15, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure or as secondary to service-connected disabilities is denied. Entitlement to service connection for erectile dysfunction (ED), as secondary to service-connected disabilities, is denied. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is denied. Entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease from October 3, 2007 to December 10, 2020, and in excess of 60 percent since December 10, 2020, is denied. FINDINGS OF FACT 1. The Veteran’s hypertension, ED, and OSA are not secondary to service-connected disabilities, and are not otherwise related to an in-service injury or disease. 2. Excluding the period of May 25, 2010, to July 1, 2010, when the Veteran was in receipt of a temporary 100 percent rating, prior to December 10, 2020, the Veteran’s ischemic heart disease required treatment with continuous medication. 3. Since December 10, 2020, metabolic equivalent (MET) testing shows the Veteran develops dyspnea and fatigue at a workload of greater than 3 but not greater than 5 METs. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension due to service or service-connected disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for ED due to service or service-connected disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for OSA due to service or service-connected disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for rating in excess of in excess of 10 percent for ischemic heart disease from October 3, 2007 to December 10, 2020, and in excess of 60 percent since December 10, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1959 to June 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2007, February 2010, August 2011, and January 2021 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record and has been reviewed. The claims were previously remanded by the Board in October 2020. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Currently, the Veteran is service-connected for the following disabilities: prostate cancer, post-traumatic stress disorder (PTSD), ischemic heart disease, lumbar spine arthritis, neuropathy of the bilateral lower extremities, tinnitus, bilateral hearing loss, diabetes, and bilateral knee chondromalacia. Pursuant to 38 C.F.R. § 3.309 (e), if a Veteran was exposed to an herbicide agent (including Agent Orange) during active service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 ; 38 C.F.R. § 3.307 (d) are also satisfied. Although the Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam, the Board notes that hypertension, sleep apnea, and ED are not enumerated diseases for which presumptive service connection for exposure to an herbicide agent is available. However, the Board observes that the National Academies of Sciences, Engineering, and Medicine upgraded the likelihood of an association between hypertension and exposure to an herbicide agent from “limited or suggestive” to “sufficient” evidence of an association. 38 C.F.R. § 3.309 (e); see Veterans and Agent Orange: Update 11 (2018). Where the evidence does not warrant presumptive service connection, a Veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). A claimant is permitted to demonstrate in-service incurrence or aggravation through actual evidence of Agent Orange exposure, and a claimant may establish a nexus to service by actual evidence of a link between a present disability and the in-service event. See Combee, 34 F.3d at 1043-44; 38 C.F.R. § 3.303 (d). Additionally, where a veteran served for at least 90 days during a period of war and manifests hypertension to a degree of 10 percent within one year from the date of termination of that service, hypertension shall be presumed to have been incurred in service, even though there is no evidence of the disability during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be chronic, and not acute and transitory. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases set forth in 38 C.F.R. § 3.309 (a) (e.g., hypertension), continuity of symptoms is required when the condition noted in service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303 (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The questions for the Board are 1) whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or 2) whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by a service-connected disability. The Board notes at the outset that VA medical opinions were obtained in November 2015, December 2016, and March 2019 regarding the Veteran’s hypertension, ED, and OSA claims. However, the Board determined in previous decisions that these opinions were inadequate. Therefore, new VA medical opinions were obtained in January 2021. 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure or as secondary to service-connected disabilities The Veteran contends he is entitled to service connection for hypertension, to include as due to herbicide exposure, or as secondary to his service-connected disabilities. The Board concludes that, while the Veteran has a current diagnosis of hypertension, and evidence shows that he is presumed to have been exposed to herbicides in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hypertension began during service or is otherwise related to an in-service injury, event, or disease. The Board also concludes that the preponderance of the evidence is against finding that the Veteran’s hypertension is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Service treatment records are silent for any treatment of or diagnosis for hypertension. Private treatment records show the Veteran was not diagnosed with hypertension until February 1997, 18 years after his separation from service. Treatment records also show the Veteran is on prescribed medication to control his blood pressure. November 2015 VA medical records show the Veteran reported that he was diagnosed with hypertension and placed on medication while in service. The January 2021 VA examiner opined that the Veteran’s hypertension is less likely than not related to service and/or proximately due to, aggravated by or the result of the Veteran’s service-connected disabilities, including medications used to treat his disabilities. First, the examiner explained that the Veteran’s hypertension is not due to herbicide exposure while in service. He discussed the 2018 NAS report, which suggested an association between hypertension and herbicide exposure. However, he noted that the report did not establish a cause and found it unlikely that the Veteran’s hypertension is due to in-service exposure to herbicides. Next, the examiner determined that hypertension is not caused or aggravated by the Veteran’s service-connected conditions. As rationale, he stated that there is no physiologic or anatomic mechanism by which the Veteran’s service-connected conditions can cause or aggravate hypertension. The examiner noted that the Veteran’s hypertension predated the onset of diabetes, and that for hypertension to be aggravated by diabetes, diabetic nephropathy must be present. In this case, the examiner found the Veteran’s renal functions are normal, and that there is no impact due to diabetes. He acknowledges that anxiety and stress may temporarily elevate blood pressure, but would not cause or aggravate the baseline condition. Regarding the Veteran’s heart disease, the examiner stated that it neither causes nor aggravates hypertension. He explained that hypertension is due to increased peripheral resistance, whereas the Veteran’s heart disease involves only the vessels of the heart, and the two conditions are unrelated. The examiner also determined that there is no physiologic or anatomic mechanism by which prostate cancer, which has been in remission since 2016, can cause or aggravate the Veteran’s hypertension. He also noted that the hypertension diagnosis predated the prostate cancer diagnosis. The Veteran believes his hypertension is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Additionally, the Veteran has not submitted a private medical opinion in support of his claim that establishes a nexus between his hypertension and military service and/or service-connected disabilities. Consequently, the Board gives more probative weight to the January 2021 examiner’s opinion, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the claim of entitlement to service connection for hypertension is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for ED as secondary to service-connected disabilities The Veteran contends that he is entitled to service connection for ED, to include as due to service-connected disabilities. The Board concludes that, while the Veteran has a current diagnosis of ED, the preponderance of the evidence weighs against finding that the condition either began during service or is otherwise related to an in-service injury, event, or disease, or is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. Service treatment records are silent for any treatment of or diagnosis for ED. Private treatment records show the Veteran was diagnosed with ED in August 2006, 27 years after his separation from service. At the October 2014 Board hearing, the Veteran testified that he first noticed that he had intimacy problems with his wife during service. VA medical records from November 2015 show the Veteran reported his ED started in service when he was given medication to treat another condition. He also stated that he has tried ED medications, to no avail. The VA physician noted that despite the Veteran’s reported claims of ED in service, he was able to conceive his youngest children during that time. The January 2021 VA examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected disabilities. As rationale, the examiner noted that the Veteran’s ED diagnosis predated his prostate cancer diagnosis, and found it unlikely that any prostate cancer treatment contributed in any way to ED. He stated the Veteran received only a single episode of treatment. The examiner also determined that diabetes did not cause ED, as diabetes was diagnosed after the onset of ED. He also determined that it was less likely than not that diabetes aggravated ED because the Veteran is noted to have not tried medications and there has been no change in ED. Although the Veteran believes his ED is related to service or a service-connected disability, including medications to treat those conditions, the Veteran is not competent to provide a nexus opinion. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). A review of the record fails to show the Veteran’s ED is caused or aggravated by any of his service-connected disabilities, nor is there an opinion within the claims file establishing a medical nexus between ED and his military service and/or service-connected disabilities. Consequently, the Board gives more probative weight to the January 2021 examiner’s opinion, which is based on an accurate medical history and provides sufficient supporting rationale. Nieves-Rodriguez, 22 Vet. App. at 304 (2008). Accordingly, the claim of entitlement to service connection for ED is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56 (1990). 3. Entitlement to service connection for OSA, to include as secondary to service-connected disabilities The Veteran contends that he is entitled to service connection for OSA, to include as due to service-connected disabilities. The Board concludes that, while the Veteran has a current diagnosis of OSA, the preponderance of the evidence weighs against finding that the condition either began during service or is otherwise related to an in-service injury, event, or disease, or is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. Service treatment records are silent for any treatment of or diagnosis for sleep apnea. The Veteran reported at the October 2014 Board hearing that he has experienced difficulty sleeping since service. November 2015 VA medical records show the Veteran reported he underwent a sleep study in 2004 and was diagnosed with OSA. He stated he uses a continuous positive airway pressure (CPAP) machine. In May 2017, a VA examiner noted that the Veteran’s sleep apnea was as likely due to obesity, prior to the Veteran undergoing bariatric surgery in 2007 due to morbid obesity. That examiner also acknowledged the Veteran’s reports of snoring in service, but stated not everyone who snores has sleep apnea. The January 2021 VA examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected disabilities. The examiner stated that there is no objective evidence of the Veteran’s sleep apnea being aggravated beyond its natural course. He explained that, by definition, OSA is due to the obstruction of the upper airway associated with apneic episodes, and there is no physiologic or anatomic mechanism by which any of the Veteran’s service-connected conditions can cause OSA. Additionally, the examiner stated that it is accepted knowledge that the medications for the Veteran’s service-connected disabilities do not cause OSA. The examiner explained that any impact of medications is dose-related and mediated through a separate central nervous system pathway, and any sedating effect would involve central respiratory mechanisms and would not impact OSA itself. Furthermore, he stated that any effect would ameliorate or cease upon discontinuation of the medication and therefore does not constitute cause or aggravation of the baseline condition. Lastly, the examiner noted that sleep disturbances associated with psychological conditions do not impact the mechanism of OSA, with respect to cause or aggravation. Although the Veteran believes his OSA is related to service and/or service-connected disabilities, including medications to treat those conditions, the Veteran is not competent to provide a nexus opinion. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). He was not diagnosed with the condition until 25 years after service, and he has not submitted a private medical opinion the links his OSA to either his military service or his service-connected disabilities. Consequently, the Board gives more probative weight to the January 2021 examiner’s opinion, which is based on an accurate medical history and includes thorough rationale. Nieves-Rodriguez, 22 Vet. App. at 304 (2008). Accordingly, the claim of entitlement to service connection for OSA is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56 (1990). Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 4. Entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease from October 3, 2007 to December 10, 2020, and in excess of 60 percent since December 10, 2020 The Veteran contends that he is entitled to higher ratings for service-connected ischemic heart disease. His heart disease is rated under Diagnostic Code (DC) 7005. See 38 C.F.R. § 4.104. From October 3, 2007, to May 25, 2010, the Veteran’s heart disease was rated as 10 percent disabling, and from May 25, 2010, to July 1, 2010, he received a temporary 100 percent rating due to undergoing a catheterization with stent placement. From July 1, 2010, to December 10, 2020, the Veteran’s heart disease was rated as 10 percent disabling, and since December 10, 2020, has been rated as 60 percent disabling. Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). Under DC 7005, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. One metabolic equivalent (MET) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Id. October 3, 2007 – May 25, 2010; July 1, 2010 – December 10, 2020 Private treatment notes from October 2007 show the Veteran was diagnosed with coronary artery disease and required aspirin daily as treatment. In June 2008, the Veteran’s heart disease was described as stable. However, a stress test from April 2010 showed ischemia. The Veteran was afforded a VA examination in October 2012. The examiner determined the Veteran did not have congestive heart failure. An exercise stress test was not conducted, but the Veteran was noted to have left ventricular ejection fraction (LVEF) of 70 percent. He denied experiencing any dyspnea, fatigue, angina, dizziness, and syncope. At a November 2015 VA examination, the examiner noted the Veteran required continuous medication. He determined that the Veteran did not have myocardial infarction, congestive heart failure, arrhythmia, heart valve condition, infections heart conditions, or pericardial adhesions. An exercise stress test was not conducted, and instead the examiner administered an interview based METs test, during which the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. Additionally, the Veteran was noted to have LVEF of 60 percent. Private treatment notes from May 2017 show the Veteran denied having chest pain, dyspnea, fatigue, or heart palpitations. In April 2019, the Veteran was afforded another VA examination. The Veteran reported that he regularly saw a private cardiologist for the past 15 years. At his most recent visit to the cardiologist in October 2018, there were no changes to his condition, and he was advised to continue taking his current medication. At the examination, the examiner noted the Veteran required continuous medication to treat his condition. The Veteran denied being hospitalized since having surgery in 2015. He did not have any other heart complications, and there was no evidence of cardiac hypertrophy or cardiac dilatation. Based on a March 2019 echocardiogram, the Veteran had a LVEF of 60 to 65 percent. The examiner stated that the Veteran is competent to report observable symptoms of his heart disease, which she considered. An exercise stress test was not conducted. However, the examiner explained that the Veteran’s METs are affected by a variety of conditions, including general decondition, body mass index, age, and musculoskeletal conditions. The examiner concluded that the Veteran’s LVEF was a more accurate measure of his cardiac function. Considering all relevant evidence of record, the Board finds that prior to December 10, 2020, the severity of the Veteran’s heart disease did not warrant a rating in excess of 10 percent. The Board notes that in previous decisions it instructed the VA examiners to administer stress tests. Unfortunately, this directive was not complied with prior to December 10, 2020, and there is no way to recreate what the Veteran’s exercise stress test results would have been based on his current status. Nevertheless, the Board finds there is sufficient evidence of record to adjudicate the claim. The Board reviewed the extensive amount of private and VA treatment notes within the claims file documenting the Veteran’s heart disease. Aside from the surgery the Veteran underwent in 2015, there is no indication that the disability worsened to warrant a higher rating prior to December 10, 2020. Additionally, the Veteran’s lay statements failed to show the condition of heart disease had worsened and/or caused symptoms. The Veteran repeatedly denied having symptoms of dyspnea, fatigue, angina, dizziness, or syncope. There was no evidence of cardiac hypertrophy or dilation, nor did he have congestive heart failure. At worst, the Veteran’s LVEF was 60 percent, and he required only continuous medication as treatment. Despite the lack of METs tests, when considering the evidence as a whole, the severity of the Veteran’s heart disease does not more closely approximate the criteria associated with a 30 percent or higher rating. Thus, the Board concludes that the Veteran’s ischemic heart disease did not meet the criteria corresponding to a 30 percent or higher rating prior to December 10, 2020. December 10, 2020 - Present Since December 10, 2020, the Veteran’s heart disease has been rated as 60 percent disabling. As noted above, a 100 percent rating is warranted there is evidence of chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. For the purposes of a 100 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382. On December 10, 2020, the Veteran attended a VA examination, during which he reported that he felt his condition had worsened since his last VA examination. Specifically, he reported experiencing episodes of chest pain four times each month, fatigue that requires a two-hour nap per day, and shortness of breath. The examination report shows the Veteran required continuous medication to treat his heart disease. He did not have congestive heart failure, but his METs test level was between 3 and 5 METs. (Continued on the next page)   Based on a review of the evidence, the Board finds the severity of the Veteran’s heart disease does not warrant a 100 percent rating. The December 2020 VA examination report, and medical records dated since that examination, fail to show the Veteran has congestive heart failure or a LVEF of less than 30 percent. Testing showed the Veteran’s METs were between 3 and 5, which is consistent with the 60 percent rating criteria. Therefore, a rating in excess of 60 percent since December 10, 2020, is not warranted. Accordingly, an initial disability rating in excess of 10 percent from October 3, 2007 to December 10, 2020, and in excess of 60 percent since December 10, 2020, for service-connected ischemic heart disease. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.