Citation Nr: 21041582 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-44 348 DATE: July 9, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for a sleep disorder is denied. FINDINGS OF FACT 1. The Veteran's hypertension is not causally or etiologically due to his service. 2. The Veteran's diabetes mellitus is not causally or etiologically due to his service. 3. The Veteran's acquired psychiatric disorder, to include PTSD is not causally or etiologically due to his service, as there is no credible evidence of an in-service injury, event, or disease. 4. The Veteran's sleep disorder is not causally or etiologically due to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1988 to December 1991. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Huntington, WV. The Board remanded this case in March 2019 for additional development. Thereafter, an August 2020 supplemental statement of the case denied the claims. Service Connection Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hypertension. VA treatment records show the Veteran was diagnosed with hypertension in 2004. Service treatment records show the Veteran had some elevated blood pressure readings associated with musculoskeletal pain. The Veteran asserts that his hypertension is related to one incident of chest pain in 1990, which he believes was a small heart attack. The Veteran was afforded a VA examination in December 2019. Due to the large time gap between the Veteran's chest pain incident and his diagnosis of hypertension, and the Veteran's history of "poorly to fairly well controlled" diabetes, the examiner opined it was less likely than not that the Veteran's hypertension is related to his service. Additionally, the examiner determined that the Veteran's reported chest pain in service was not likely a heart attack. He noted that service treatment records show the Veteran complained of chest pain in 1990, but was not admitted to the hospital. Additionally, he said the Veteran was only 24 when he had the chest pain, and did not have a history of congenital heart disease. The examiner explained that those who are at risk for silent heart attacks include those with diabetes mellitus, but the Veteran was not diagnosed with diabetes until 2005. Also, people who work in public safety occupations such as airline pilots, bus drivers, and truck drivers, are screened for congenital heart disease. The examiner additionally noted the Veteran saw a cardiologist in April 2015, where it was noted that he had "no known prior CV disease." The Board finds that the December 2019 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. As mentioned above, the Veteran was not diagnosed with hypertension until 2004. Additionally, the examiner noted the Veteran's elevated blood pressure during service was related to musculoskeletal pain. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection is denied. 2. Entitlement to service connection for diabetes mellitus. VA treatment records show the Veteran was diagnosed with diabetes in 2005. Service treatment records show the Veteran had some elevated blood pressure readings associated with musculoskeletal pain. The Veteran asserts that his diabetes is related to one incident of chest pain in 1990, which he believes was a small heart attack. The Veteran was afforded a VA examination in December 2019. Due to the large time gap between the Veteran's chest pain incident and his diagnosis of diabetes, and the presence of other risk factors for diabetes, the examiner opined it was less likely than not that the Veteran's diabetes is related to his service. The examiner explained that the Veteran's diabetes is due to his weight gain and sedentary lifestyle. Additionally, as explained above, the examiner determined that the Veteran's reported chest pain in service was not likely a heart attack, nor did he have a history of cardiovascular disease. The examiner explained that those who are at risk for silent heart attacks or congenital heart disease include those with diabetes mellitus, but that medical literature shows that the reverse is not true. Therefore, he said the Veteran's chest pain could not have caused diabetes. The Board finds that the December 2019 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. As mentioned above, the Veteran was not diagnosed with diabetes until 2005. Additionally, there is no evidence the Veteran had symptoms of diabetes before his diagnosis. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection is denied. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In characterizing the issues on appeal, the Board recognizes that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has broadened the Veteran's PTSD claim and recharacterized the issue as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as identified above. The Veteran was afforded a VA examination in December 2019 where he was diagnosed with Other Specified Trauma and Stressor Related Disorder, but did not meet the criteria for PTSD. Although the examiner opined the Veteran's Other Specified Trauma and Stressor Related Disorder is at least as likely as not related to service, the basis for this opinion is not credible. The only rationale for this opinion is based on a statement by the Veteran at the examination that he has intrusive thoughts related to his combat experiences. The examiner specifically noted that the Veteran reported "intrusive memories, nightmares, and dissociative-like episodes associated with combat-related experiences - burning oil fields, tank fights, and general destruction." Although the Veteran is competent to describe his experiences in service, there are not enough details available to determine its credibility. Generally, lay testimony alone is not sufficient to establish that a stressor occurred; it must be corroborated by "credible supporting evidence." See Cohen, 10 Vet. App. at 142. The Board remanded this case in March 2019, instructing the RO to provide the Veteran with the PTSD questionnaire, so that the Veteran could detail the stressful incident(s) in service that resulted in his acquired psychiatric disorder. However, the Veteran never responded. Additionally, there is no evidence in the file, including his military personnel records, that indicate he had combat experience. Thus, the Board cannot find the Veteran's assertion that he has intrusive thoughts related to combat to be credible. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection is denied. 4. Entitlement to service connection for a sleep disorder. VA treatment records show the Veteran was diagnosed with obstructive sleep apnea in 2018. The Veteran reported in 2017 that he had long standing symptoms, but there is no indication of when they started or if he sought treatment before 2017. Service treatment records are silent for any sleep related complaints. The Veteran was afforded a VA examination December 2019. The examiner opined it was less likely than not that the Veteran's sleep apnea is related to his service, because he did not report symptoms until 2017, and his sleep apnea is likely due to his other risk factors. The examiner explained that the Veteran's BMI has been in the 36-37 range since 2015, and that obesity and weight gain are risk factors for sleep apnea. The Board finds that the December 2019 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. As mentioned above, the record shows the Veteran did not complain of sleep related symptoms in 2017, and there is no indication he had any symptoms in service or shortly after. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection is denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.