Citation Nr: 21030330 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-33 839 DATE: May 18, 2021 ORDER Service connection for a lumbar spine disorder, diagnosed as degenerative disc disease, is denied. Service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, or as due to exposure to herbicide agents, is denied. Service connection for sleep apnea, to include as secondary to service-connected acquired psychiatric disorder, is denied. FINDINGS OF FACT 1. A lumbar spine disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. 2. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of separation from active duty, and is not caused or aggravated by a service-connected disability. 3. Sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2012 by a Department of Veterans Affairs (VA) Regional Office. In March 2019, the Board remanded the case for additional development and it now returns for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is 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). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R.§3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(a), 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a lumbar spine disorder. The Veteran contends that his lumbar spine disorder is due to his service. Specifically, he claims that his current condition is a result of lifting heavy equipment as a firefighter and due to his duties while working as a hull technician. The Veteran's service treatment records (STRs) indicate the Veteran was treated for back pain in November 1972 and May 1973, which was diagnosed as lumbosacral strain. The May 1972 entrance examination and April 1975 separation examination were both silent to any complaints or diagnoses related to back pain or back injuries. The Veteran underwent a VA examination in March 2012, at which time he was diagnosed with mild lumbar spine degenerative disc disease. At the time, the Veteran reported that he had back trouble since he was "a young man" and as his weight went up, his back got worse. The examiner opined that the Veteran's back disorder was not caused by, related to, or incurred in service and it is not the same as or related to the back pain reported in November 1972. In this regard, the examiner noted that the Veteran's entrance and separation examinations were silent to any back condition and the pain documented in November 1972 is consistent with symptoms related to a urinary condition the Veteran was experiencing. The VA examiner found the Veteran's current low back pain most likely due to natural age and high body mass index. As noted in the March 2019 remand, the examiner did not acknowledge or consider the May 1973 report of lumbosacral strain in the rationale. Therefore, the Board found a remand necessary to afford the Veteran a new spinal examination to determine the etiology of any diagnosed disorder. Accordingly, the Veteran was afforded a VA examination in December 2019. The examination report noted diagnoses of degenerative arthritis of the spine and spinal stenosis. At the time, the examiner opined that the Veteran's lumbar spine disorder is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, it was noted that the entrance and separation examinations are silent for any back condition during service, and there is no evidence to support that a lumbosacral strain causes degenerative arthritis. In this regard, she noted that a strain is tearing of muscles and tendons, while degenerative arthritis is the wearing down of the protective tissue at the ends of bones, which occurs gradually and worsens over time. Thus, the two are not related. Further, the examiner noted that any back complaints during active duty were acute and resolved with no chronicity of care. Therefore, the examiner provided that the Veteran's degenerative arthritis of the lumbar spine is most likely related to natural age and elevated body mass index. The Board affords great probative weight to the December 2019 VA examiner's opinion as it considered all of the pertinent evidence of record, to include the service treatment records, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner relied on an absence of chronicity of care. However, it is clear from an overall reading of the opinion that the examiner was intending to mean that without evidence of chronicity of care, his initial back injury would not have been severe enough to cause the onset of his current condition. To this end, it informs the Board of the medical significance of the absent findings during service. On this basis, the opinion does not impermissibly rely on an absence of evidence as negative absence. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Furthermore, the evidence of record fails to demonstrate that arthritis of the lumbar spine manifested to a compensable degree within one year of the Veteran's separation from service. He informed the December 2019 VA examiner that the surgery was in 1996, which was approximately 21 years after service. This cannot reasonably be considered proximate in time to service. Hence, his contention does not support a continuity since service. In this regard, his April 1975 separation examination revealed that his spine was normal upon clinical evaluation, and he underwent a physical examination in December 1975 for Reserve service. At that time, he denied a history of recurrent back pain. The medical records weigh against the claim as they are affirmative evidence of absence during and proximate in time to his service. These examinations must be accepted as the credible and accurate account of his back condition during and proximate in time to service. See Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019). The Veteran believes that his current back disorder is otherwise related to heavy lifting during service. He wrote in September 2015 that he had symptoms in service and had surgery on his back "shortly after" service. Moreover, while lay persons are competent to provide opinions on some medical issues, the cause of his back disorder falls outside the realm of common knowledge of a lay person as it requires consideration of his specific circumstances in the context of the development of his disease with an understanding of how these diseases develop. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Such matters involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, the etiology of degenerative arthritis, which involves the degeneration of a joint, are an internal process, and specialized knowledge is necessary to determine whether a specific event led to such disorder. In sum, the Board finds the Veteran's back disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year from discharge from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a back disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, or as due to exposure to herbicide agents. The Veteran contends that his currently diagnosed hypertension was caused by his service-connected diabetes mellitus. In the alternative, he alleges that his hypertension is associated with herbicide agent exposure. As an initial matter, Veteran's primary content is that hypertension is secondary to diabetes. In an August 2019 rating decision, the Agency of Original Jurisdiction (AOJ) severed the Veteran's entitlement to service connection for diabetes mellitus, type II, effective November 1, 2019. As such, the Board finds that under the law, the Veteran lacks legal grounds to establish service connection for hypertension as secondary to diabetes mellitus, type II. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Specifically, insofar as service connection is not in effect for the disability claimed by the Veteran to have proximately caused his hypertension, service connection on a secondary basis is not applicable under the law. The Board recognizes that the Veteran was service connected for diabetes mellitus, type II, during the appeal period; however, pursuant to 38 C.F.R. § 3.400(o)(1), an additional benefit cannot be awarded after basic entitlement has been terminated. Thus, as there is no legal entitlement, the claim of entitlement to service connection for hypertension as secondary to diabetes mellitus, type II is without legal merit and must be denied. Id.; Sabonis, supra. With regard to the alternative theory, the Veteran's service treatment records (STRs) do not show a pattern of elevated blood pressure levels or a diagnosis of hypertension during service. Additionally, his blood pressure was normal at separation. Furthermore, the Veteran has not alleged that his hypertension manifested within a year of separation from active duty or that he experienced a continuity of symptomatology thereafter. Therefore, presumptive service connection for hypertension as a chronic disease is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Additionally, the Veteran also contends that his hypertension is due to exposure to herbicide agents. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). For veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). While hypertension is not included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, in Update 11 (2018), the National Academy of Science Institute of Medicine upgraded hypertension from its classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Here, it is noted that the Veteran served for periods on the USS Enterprise, which is known to have been in the waters off the Republic of Vietnam. See September 2011 Defense Personnel Records Information Retrieval System Memorandum. Pursuant to the March 2019 remand directives, the Veteran underwent a VA examination regarding his claim for hypertension in January 2020. The examiner opined that the Veteran's hypertension is less likely than not incurred in or caused by the claimed in-service injury, event or illness. In this regard, it was noted that the Veteran's service treatment records are silent for a blood pressure condition during service. Additionally, the examiner noted that the while hypertension is not an illness associated with herbicide exposure, recent studies have shown an association between hypertension and those assigned to the Chemical Corps who had a high exposure to herbicides. However, for other veterans, the prospect of exposure to contaminants of herbicide agents is unlikely due to the environmental dissipation and the circumstances of the applications of such herbicides. Notably, environmental studies reveal degradation and little residuals present in soils, and therefore, exposure to the contaminants would have been small and indistinguishable from background levels, even if they had been in recently treated areas. Therefore, repeated long-term direct skin contact of contaminants would have been necessary to have any effects. Incidental exposure under field conditions where herbicide exposure was sprayed would not have been sufficient. Consequently, the examiner found that the Veteran's hypertension was not related to or caused by service. Rather, the examiner found that the Veteran's hypertension is likely related to his condition of diabetes mellitus, type II. In this regard, the examiner reported that diabetes mellitus, type II, often damages arteries and causes them to harden which results in high blood pressure. The Board affords great probative weight to the January 2020 VA examiners opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Notably, there is no medical opinion to the contrary. The Board has considered the Veteran's statements that his hypertension is related to his service and exposure to herbicide agents; however, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Specifically, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of hypertension, such falls outside the realm of common knowledge of a lay person. See Jandreau, supra; see also Woehlaert, supra. Accordingly, the Veteran's opinion as to the etiology of his hypertension is not competent evidence on the critical question at issue here. Based on the foregoing, the Board finds that the Veteran's hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of service discharge. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for a sleep apnea, to include as secondary to an acquired psychiatric condition. The Veteran contends that his currently diagnosed sleep apnea was incurred in or is caused by service. In this regard, in November 2013, the Veteran reported that he was told by his shipmates that he snored and interrupted others sleeps while in service; however, he never sought treatment while aboard. In the alternative, the Veteran alleges that his sleep disorder is caused or aggravated by his service-connected psychiatric condition. The Veteran's service-treatment records are silent to any complaints, treatment, or diagnosis related to a sleep disorder. Post-service treatment records indicate that the Veteran first began receiving treatment in October 2013. At that time, the Veteran underwent a sleep study, in which he was diagnosed with severe obstructive sleep apnea. Pursuant to the March 2019 remand directives, the Veteran underwent a VA examination in December 2020. At the time, the examiner confirmed a diagnosis of severe obstructive sleep apnea. The Veteran reported that his wife started to tell him that he snored and had daytime sleepiness beginning in 1973. The examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She noted that the Veteran's service treatment records are silent to any treatment or complaints of sleep apnea, and he was not diagnosed until 2013, more than 35 years following separation from service. Additionally, the examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of Veteran's service connected acquired psychiatric condition. In this regard, she noted that the two conditions are not medically related. Medical literature does not support the contention that a mental health condition, such as posttraumatic stress disorder (PTSD), is causative or the potential for aggravation of sleep apnea. Rather, sleep apnea is due to upper airway soft tissue abnormalities and/or obesity. Additionally, it was noted that while some studies have suggested an association between PTSD and sleep apnea, such studies do not show causality. As such, the examiner concluded that the claimed disorder is a separate entity entirely from the service connected acquired psychiatric disorder. Overall, the VA examiner found that obesity is the best documented risk factor for sleep apnea. The prevalence of sleep apnea progressively increases as the body mass index and associated markers, such as neck circumference and waist-to-hip ratio, increase. Therefore, in consideration of the Veteran's body mass index and weight, it is less likely than not that the Veteran's sleep apnea is related to service. The Board affords great probative weight to the December 2020 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. The examiner cited silence in the STRs and a lack of diagnosis until many years after service. However, the examiner also considered the Veteran's report of symptoms, such as snoring during service. Hence, it cannot be said that the examiner disregarded or ignored the Veteran's assertions. Rather, on an overall reading, it is clear that the examiner found the Veteran's obesity, rather than his in-service complaints, to be the most likely etiology. This opinion is cogent and probative. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); (Continued on the next page) The Board has considered the Veteran's statements that his sleep apnea is related to his service and service-connected acquired psychiatric disorder; however, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Specifically, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of sleep apnea, such falls outside the realm of common knowledge of a lay person. Accordingly, the Veteran's opinion as to the etiology of his hypertension is not competent on this question. Based on the foregoing, the Board finds that the Veteran's sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.