Citation Nr: 22014102 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-22 057 DATE: March 11, 2022 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for pulmonary heart disease is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. Entitlement to a compensable initial rating for left ear hearing loss is remanded. The petition to reopen the previously denied claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The petition to reopen the previously denied claim for entitlement to service connection for a right knee disability (now status post total replacement) is remanded. The petition to reopen the previously denied claim for entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for lumbar spine degenerative joint disease with sciatica is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's sleep apnea began during his active service, or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that the Veteran's hypertension began during his active service, or is otherwise related to an in-service injury or disease. 3. The evidence of record persuasively weighs against finding that the Veteran's pulmonary heart disease began during his active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for pulmonary heart disease have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1991 to May 1991 and from January 1995 to March 1995. In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Veteran was not provided VA examinations as to his claims for entitlement to service connection for sleep apnea, hypertension, and pulmonary heart disease. VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). However, in this case there is no evidence establishing that an event, injury, or disease occurred in service or that a presumptive condition manifested during an applicable presumptive period. Therefore, VA examinations were not required for those claims. Neither the Veteran nor his representative has raised any other issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection 1. Entitlement to service connection for sleep apnea 2. Entitlement to service connection for hypertension 3. Entitlement to service connection for pulmonary heart disease The Veteran seeks entitlement to service connection for sleep apnea, hypertension, and pulmonary heart disease. He has not presented any particular theory as to how the disabilities are related to his active service, but he has asserted that the pulmonary heart disease as secondary to his hypertension. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). The question for the Board in each claim is whether the evidence is at least in approximate balance as to whether the Veteran has a current disability that began during service or is related to an in-service injury, event, or disease. The Board concludes that, although the record shows the Veteran may have had sleep apnea, hypertension, and pulmonary heart disease during or in temporal proximity to the appeal period, the evidence persuasively weighs against finding that those current disabilities began during the Veteran's active service or are otherwise related to an in-service injury, event, or disease. The service treatment records do not show a diagnosis of sleep apnea, hypertension, or pulmonary heart disease. The service treatment records also do not show in-service blood pressure readings that would be sufficient to confirm in-service hypertension under Note (1) for 38 C.F.R. § 4.104, Diagnostic Code 7101. The medical treatment evidence of record does not show that the Veteran was diagnosed with sleep apnea, hypertension, or pulmonary heart disease until many years after his separation from active service. Furthermore, as noted above, the Veteran has not presented any particular theory as to how the claimed sleep apnea, hypertension, and pulmonary heart disease are related to his active service. Finally, because hypertension has not been service connected, pulmonary heart disease cannot be service connected on secondary basis as due to or aggravated by hypertension under the provisions of 38 C.F.R. § 3.310. In summary, there is no probative evidence of record showing that the Veteran's sleep apnea, hypertension, and pulmonary heart disease began during his active service or are otherwise related to an in-service event, injury, or disease. In view of the foregoing, the Board concludes that the evidence for and against the claims is not in approximate balance, but rather weighs against the claims. Because there is not an approximate balance in the weight of the evidence, the doctrine of reasonable doubt is not for application, and the claims for entitlement to service connection for sleep apnea, hypertension, and pulmonary heart disease must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. 2. Entitlement to a compensable initial rating for left ear hearing loss is remanded. 3. The petition to reopen the previously denied claim for entitlement to service connection for PTSD is remanded. 4. The petition to reopen the previously denied claim for entitlement to service connection for a right knee disability (now status post total replacement) is remanded. 5. The petition to reopen the previously denied claim for entitlement to service connection for a left knee disability is remanded. 6. Entitlement to service connection for right ear hearing loss is remanded. Following issuance of the March 2015 rating decision on appeal, the Veteran submitted a timely notice of disagreement in April 2015 as to "all determinations made by the regional office unless specifically excluded above." The notice of disagreement did not specifically exclude the issues of entitlement to an initial rating in excess of 10 percent for tinnitus; entitlement to a compensable initial rating for left ear hearing loss; whether new and material evidence has been received to reopen the previously denied claims for entitlement to service connection for PTSD, a right knee disability (now status post total replacement), and a left knee disability; and entitlement to service connection for right ear hearing loss. However, a statement of the case has not yet been issued as to those issues. A remand is required for the agency of original jurisdiction to issue a statement of the case. 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 7. Entitlement to service connection for lumbar spine degenerative joint disease with sciatica is remanded. The service treatment records show that the Veteran endorsed recurrent back pain on a September 1995 periodic report of medical history. The nature, onset, and history of that back pain, to include whether it may be related to an event, injury, or illness during either of the Veteran's two periods of active service, is unclear from the record. The Board finds that the threshold for providing an examination as to the Veteran's claimed lumbar spine disability have been met, and the issue must be remanded so that the Veteran may be scheduled for an examination to clarify the history and likely etiology of his current lumbar spine disability. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to an initial rating in excess of 10 percent for tinnitus; entitlement to a compensable initial rating for left ear hearing loss; whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for PTSD; whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for a right knee disability (now status post total replacement); whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for a left knee disability; and entitlement to service connection for right ear hearing loss. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 2. Schedule the Veteran for a VA examination for his claimed lumbar spine disability. The examiner must review the claims file and take a full medical history from the Veteran of his current lumbar spine disability. The examiner is asked to provide a response to the following: Is the current lumbar spine disability at least as likely as not (50 percent probability or greater) related to the Veteran's active service? The examiner must discuss the Veteran's endorsement of recurrent low back pain on the September 1995 periodic report of medical history. Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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. § 20.1303.32