Citation Nr: 21031772 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-26 299A DATE: May 24, 2021 ORDER Service connection for hypertension is granted. Service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. The Veteran's hypertension is related to his military service. 2. The Veteran's OSA had its onset during military service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for service connection for OSA are met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2003 to February 2004, and on full-time active guard (AGR) service from February 2004 to December 2013. The Veteran had additional service in the West Virginia Army National Guard. The case is on appeal from March 2018 and July 2018 rating decisions. In May 2021, the Veteran testified at a Board hearing. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Active Duty There is a preliminary question raised by the June 2019 SOCs regarding the Veteran's service as a member of the West Virginia Army National Guard. Accordingly, the laws governing members of a State's Reserve or National Guard require some brief explanation for clarification purposes. The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101(24), 106, 1110. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve Veteran status for purposes of that claim. See 38 U.S.C. § 101(2)-(24). A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. In sum, to have basic eligibility as a Veteran based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service "by the President of the United States, see 10 U.S.C. § 12401, or that his duty was performed under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101(21), (22)(C), (23)." In sum, the full-time duty must be under 38 U.S.C. § §§ 316, 502, 503, 504, 505. 38 C.F.R. § 3.6 (c), (d). Here, the Veteran's service in the National Guard from March 2003 to February 2004 under Title 10 U.S.C. § 12304, and thereafter under Title 32 U.S.C. § 502(f) from February 2004 to December 2013, qualify for the purpose of VA compensation benefits. That question being answered, the Board will now address the merits of the claims. 1. Service connection for hypertension. The Veteran contends that service connection for hypertension is warranted as it had its onset during his active duty service. He asserts that his symptoms began in July 2007 and have remained the same ever since. The Board notes that the Veteran has a current diagnosis of hypertension. See June 4, 2018 and September 7, 2018 VA progress notes. As such, the current disability element of the claim has been established. As to the in-service element of the claim, service treatment records (STRs) show that in July 2007, the Veteran sought treatment for symptoms associated to elevated blood pressure. The private provider assessed the symptoms as elevated blood pressure without a diagnosis of hypertension. See July 5, 2007 progress notes from Charleston Family Practice Group. The Veteran also sought treatment for the same symptoms in June and July 2010. See Charleston Family Practice Group progress notes dated on June 10 and July 13, 2010. During his July 2010 assessment, the provider noted that the Veteran's elevated blood pressure was of moderate intensity and that aggravating factors included emotional stress. Thereafter, in September 2011, the private provider noted that hypertension was "first diagnosed three years ago;" however, without pharmacologic treatment. This time the assessment report listed an official diagnosis of essential hypertension. See September 7, 2011 progress notes from Charleston Family Group. An October 2, 2013 progress note from Neurological Associates, Inc., reflects that the Veteran was prescribed Metoprolol Succinate 50 Mg. Basic online research shows that Metoprolol is used to treat high blood pressure. See https://www.healthline.com/ health/heart-disease/metoprolol-tartrate-vs-metoprolol-succinate. In light of the foregoing, the Board finds that the in-service element of the claim has been also established. With respect to the nexus element, the Veteran was afforded a VA examination in connection with this claim in March 2018. The VA examiner indicated that he was unable to confirm a diagnosis of hypertension as there as "insufficient evidence of record." Per the Veteran's reports, the examiner noted that the Veteran first started medication approximately in 2008. The report also reflects that the Veteran is under treatment with "Metoprolol daily." In a November 2017 statement in support of claim, the Veteran indicated that during service in the AGR he was diagnosed with hypertension, which he mostly attributed to the demands and stress of his position. The Board has considered the medical and lay evidence of record and finds that the three basic elements for service connection are met. As to the current disability element, while the March 2018 VA examiner indicated that he cannot confirm a diagnosis of hypertension given the "insufficient evidence of record," the Board finds, however, that his opinion may have been based on inaccurate or incomplete information as the Veteran's VA treating physician has not only established the current disability, but also maintains the Veteran under active treatment with Metoprolol, which the evidence shows the Veteran begin taking during active service (See October 2, 2013 progress note from Neurological Associates, Inc.) Moreover, the March 2018 examination report confirms that the Veteran continues to take this medication daily. Thus, given the fact that the Veteran's hypertension began manifesting during active duty, that post-service treatment records account for a current disability, and the fact that the Veteran continues to receive the same medication ever since service, the Board finds that the evidence has reached a level of equipoise for the nexus element. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's hypertension is related to his military service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for hypertension is warranted. 2. Service connection for OSA. The Veteran also contends that service connection for OSA is warranted as it was incurred during active military service. In support of his claim, he asserts that he began to seek treatment for sleep issues during service and that his condition has remained the same ever since. See February 2019 statement in support of claim. In a March 2019 notice of disagreement (NOD), the Veteran stated that he began seeking treatment for his sleep-related issues while in service. He also noted that such symptoms persist to this day. During his May 2021 Board hearing, the Veteran testified that his disability was diagnosed during service and that he currently uses a CPAP machine. The Board notes that the Veteran has a current diagnosis of obstructive sleep apnea. See March 2018 VA examination; see also February 2018 PM Sleep Medicine report. As such, the current disability element of the claim is established. As to the in-service element of the claim, STRs reflect that in November 2009, the Veteran's health provider noted a history of obstructive sleep apnea that "has been noted for the past year" with associated symptoms such as snoring and obstruction in his throat. While the evidence does not reflect that a sleep study was in fact performed, the health provider assessed the Veteran's symptoms as obstructive sleep apnea. See November 9, 2009 progress notes from Charleston Family Practice Group. Thereafter, the Veteran's provider continued to list OSA as one of the Veteran's current medical problems. See June 10, 2010; July 13, 2010; January 5, 2011, April 4, 2011; and September 7, 2011 progress notes from Charleston Family Practice Group Inc. Again, no sleep studies are shown to have been performed during these assessments. As such, the question for the Board is whether a nexus exist between the current disability and the symptomatology reported during service and assessed on multiple occasions as sleep apnea by the Veteran's health provider. Post-service treatment records show that it was not until February 2018 that the Veteran underwent a sleep study which confirmed a diagnosis of mild sleep apnea in NREM and severe sleep apnea in REM sleep. See February 22, 2018 Sleep Study Report from PM Sleep Medicine. Thereafter, the Veteran was afforded a VA examination in connection with this claim in March 2018. The examination report contains an official diagnosis for sleep apnea. The Veteran reported that he began experiencing issues with his sleep in 2003 and that symptoms continued to worsen over the years. The examiner noted that at the time of the examination the Veteran did not require the use of a breathing assistance device and that his symptoms include persistent daytime hypersomnolence that impairs concentration and productivity. The Board notes that no nexus opinion was included in the report. The Board has considered the evidence of records and finds that although STRs do not show that a sleep study was performed during service to confirm a diagnosis of sleep apnea, the symptoms reported by the Veteran during service, when considered along with the health provider's multiple assessments of sleep apnea between 2009 and 2011, suggest that the Veteran's OSA had its onset during service. STRs progress notes with respect to this claim weight more in favor and less against the claim. Moreover, there is no evidence to the contrary. As such, the in-service element of the claim is established. (Continued on the next page) In addition, such assessments, which were issued by a competent medical professional, were later confirmed by the February 2018 sleep study. Accordingly, the evidence has also reached a level of equipoise as to the nexus element of the claim. As previously noted, the Veteran's symptoms were not only assessed, toward the last years of his service, as obstructive sleep apnea from his attending health provider, but such symptoms continued after service and were eventually diagnosed as obstructive sleep apnea as shown by the February 2018 sleep study. For the reasons set forth above, and particularly after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's sleep apnea had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for obstructive sleep apnea is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan 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.