Citation Nr: 21021515 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-55 519 DATE: April 13, 2021 ORDER Service connection for heart disease is denied. Service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s heart disease began during active service, manifested to a compensable degree within one year after discharge, was noted in service with continuity of symptomatology, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that OSA began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to June 1973. He did not serve in the Republic of Vietnam and his military occupational specialty was cook. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for an additional 90 days at the request of the Veteran and his representative to obtain supporting private medical evidence. To date, no records have been received by VA. In July 2020, the Board remanded these matters for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for a heart disorder is denied. The Veteran contends that his heart disease first manifested shortly after service discharge and that his current private primary care physician had told him that it was related to service. See Hearing Transcript at 23-24 (February 2020). The Board concludes that, the preponderance of the evidence is against finding that the Veteran’s heart disease, diagnosed as valvular heart disease and hypertensive heart disease, was shown as chronic in service; manifested to a compensable degree within the applicable presumptive period; was noted in service with continuity of symptomatology; or is otherwise etiologically related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. The Veteran’s service treatment records (STRs) show that his October 1970 entrance examination was negative for any complaints or clinical findings of heart disease. In December 1972, the Veteran was seen for complaints of pleuritic chest pain unrelated to exertion and radiating to his right scapular area. He was referred for a consultation with the Cardiology Service. Although an EKG was normal, x-rays reportedly showed increased cardiac size (2 cm) with definite epicardial pad outlined. The diagnosis was rule out myocardiopathy, doubt pulmonary embolism. There are no further cardiac related complaints or findings. A March 1973 service separation examination reflects normal clinical evaluation of the heart and a chest x-ray was negative. Post-service medical records include a March 1995 VA chest x-ray showing minimal non-specific fibrosis with no change since September 1993, except for a decrease in the heart size which was within normal limits. In February 2005, the Veteran presented for a physical examination conducted by his private physician. The Veteran was not found to have any cardiac abnormalities and his medical history was negative for any cardiac diagnoses. See Medical Treatment Records (Southeast Texas Medical Associates) (February 2005). A March 2005 echocardiogram from Southeast Texas Medical Associates reflects the Veteran had left ventricular hypertrophy with normal systolic function and decreased compliance. The echocardiogram report notes the study was indicated for the Veteran’s hypertension. A November 2020 VA examination reflects diagnoses for valvular heart disease and hypertensive heart disease. A chest x-ray and EKG were performed in conjunction with the VA examination and were normal. An echocardiogram showed left ventricular hypertrophy and mildly dilated left ventricle. The examination report shows the Veteran reported that the onset of his cardiac symptoms was approximately 10 to 15 years ago (i.e. around 2010 to 2015) and that his condition has worsened. The VA examiner reviewed the claims file and opined that the Veteran’s current heart diagnoses of valvular heart disease and hypertensive heart disease are less likely than not incurred in or caused by the Veteran’s service. The examiner provided the following rationale in support of the opinion: Review of the claims file reveals the Veteran was seen for complaints of pleuritic chest pain radiating to the right scapular area and diagnosis of rule out cardiomyopathy. It was determined that there was no evidence of cardiac disease. While an x-ray in service showed an increase in cardiac size, subsequent chest x-rays showed the heart was within normal limits. The chest x-ray from the day of the (VA) exam showed the heart was normal size. While (current) objective examination rendered a diagnosis of valvular heart disease and hypertensive heart disease, there is no evidence to support that the Veterans complaints in service were indicative of a cardiac condition. The Veteran was out of service approximately 32 years before an echocardiogram was performed. The Veteran's DD214 is silent for any service in foreign and/or sea service and there is no evidence of deployments while in service. A review of medical literature states that pain that is pleuritic is less likely to be caused by coronary disease. There is no evidence to support that the Veteran's heart disease is at least as likely as not (50 percent or greater probability) incurred in or caused by service. The competent, credible evidence of record reflects that the Veteran did not have a chronic heart condition, including valvular heart disease and hypertensive heart disease, in service or within one year after discharge. Further, the competent, credible evidence of record reflects no indication that the Veteran’s currently diagnosed heart conditions are etiologically related to an in-service injury or disease. While the Veteran is competent to report having experienced symptoms such as chest pain, he is not competent to provide a diagnosis in this case or determine that his in-service symptoms were manifestations of later diagnosed valvular heart disease and hypertensive heart disease as heart conditions are not susceptible to lay observation. The diagnoses are medically complex, and require knowledge of the cardiovascular system and diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, although the Veteran believes his current heart disease is related to service, his assertions are not credible. In this regard, while there is one STR, dated in December 1972, documenting a complaint of radiating chest pain, a cardiology consult found no evidence of cardiac disease. Moreover, although a contemporaneous chest x-ray indicated an increase in cardiac size, a cardiologist reviewed the chest film and stated it was quite possibly secondary to an increase in exercise which in turn caused an increase in cardiac output. A repeat chest-ray was normal and the Veteran’s separation examination also noted a negative chest x-ray. Importantly, the record shows the Veteran’s most recent chest x-ray, obtained pursuant to the November 2020 VA examination, was normal. Given the above, the Board finds the Veteran’s reports not credible. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Therefore, the Board assigns greater probative value to the STRs, which are negative for any cardiac disease, together with the decades intervening service and the first documented findings of valvular heart disease and hypertensive heart disease. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Lastly, the Board finds the VA medical opinion highly probative as it was provided by a medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is also shown to have been based on a review of the Veteran's record, referenced pertinent medical literature, and is accompanied by a well-reasoned explanation as to why the Veteran's cardiac disease did not have its onset during, or is related to, his service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for OSA is denied. The Veteran contends that his symptoms of obstructive sleep apnea first manifested during service. He testified that he was found to have OSA by his private provider through Cigna but that it was later confirmed by a VA sleep study. Hearing Transcript at 26-28 (February 2020). The Board concludes that, while the Veteran has a diagnosis of OSA, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303. The Veteran's STRs reflect no complaints or findings suggestive of sleep apnea (e.g. sleep impairment, snoring, feeling tired even after a full night's sleep, episodes of no breathing, excessive daytime sleepiness, etc.). A March 1973 separation examination report reflects normal clinical evaluation of all systems, including the ear, nose and throat. VA received an original claim for disability compensation from the Veteran in August 1973. He did not claim or report any signs, symptoms, or diagnoses related to a sleep or respiratory disorder. See VA Form 21-526 (August 1973). The record shows that OSA was confirmed by a VA sleep study performed in August 2019, over 45 years following service separation. See VA Sleep Center Polysomnography Report (CAPRI) (September 2019). The Board notes that to the extent the Veteran testified that he was first diagnosed with OSA by a non-VA medical provider, he has not submitted any records to support this assertion nor has he submitted a nexus opinion relating his current diagnosis to service. The Board accepts that the Veteran is competent to report symptoms such as snoring that he experienced in service. However, he is not competent to opine that such symptoms reflect the onset of OSA in service, or to attribute these symptoms to later diagnosed OSA as he lacks the requisite medical expertise to formulate a medical opinion on a complex medical matter involving several variables (such as other health conditions) and diagnostic testing. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n.4 (Fed. Cir. 2007) (“[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.”). Further, the Board finds the Veteran’s statements that he experienced sleep problems during service are not credible and assigns greater probative value to the STRs, which show no complaints or findings for sleep apnea, or common signs of sleep apnea, coupled with the normal service separation examination. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board also assigns greater probative value to the many years intervening service and the first documented findings for OSA. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In this regard, the Board finds that the Veteran's lay assertions regarding the existence of disability in service is inconsistent with the post service VA and private medical records that pre-date the OSA diagnosis. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (when a medical condition or symptom has not been noted in the medical records, the Board may not consider that as negative evidence unless it is the sort of condition or symptom that would normally be noted or reported). Here, VA did not obtain a VA examination or opinion in this matter. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA's duty to provide an examination only triggered if the evidence of record “indicates” that the claimed disability or symptoms “may be” associated with the established event). The Board notes that the Veteran's bare contentions that his OSA had its onset in service is not enough to trigger VA's duty to obtain a VA examination and/or medical opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a veteran's own general conclusory statement does not meet the low threshold of an indication that the claimed condition is due to service). As previously noted, the Veteran has not presented any competent and credible evidence linking his OSA to his military service. (Continued on the next page)   On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.