Citation Nr: 22016972 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 16-61 977 DATE: March 23, 2022 ORDER Entitlement to an initial compensable rating for psoriasis is denied. Entitlement to a rating in excess of 30 percent for other trauma and stress related disorder is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II is denied. Entitlement to service connection for obstructive sleep apnea is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran's psoriasis did not manifest as characteristic lesions involving at least 5 percent of the entire body; or involving at least 5 percent of exposed areas; or require intermittent systemic therapy. 2. The Veteran's other trauma and stress related disorder is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity was not shown. 3. The most probative evidence of record shows that the Veteran's service-connected diabetes mellitus requires treatment with insulin or oral medication, and a restricted diet, but does not require regulation of activities during any portion of the period on appeal. 4. The evidence persuasively weighs against finding that obstructive sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for psoriasis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7816. 2. The criteria for an initial disability rating in excess of 30 percent for other trauma and stress related disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, DC 9411. 3. The criteria for entitlement to a rating greater than 20 percent for service-connected diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.119, DC 7913. 4. The criteria for service connection for obstructive sleep apnea due to service or service-connected psychiatric condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2016 and September 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his December 2016 and September 2018 appeals, the Veteran requested a Board hearing. Subsequently, in June 2021, the Veteran's representative withdrew the request for a Board hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In making the below determinations, the Board notes that neither the Veteran nor his representative has raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show that these disabilities render him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial compensable rating for psoriasis The Veteran seeks a compensable rating for psoriasis. He contends that he experiences pain and an oozing rash during flare-ups. He reported that even though his skin condition had improved, it would flare up again and he would have to keep doctoring it. The Veteran's psoriasis is rated under DC 7816, for psoriasis. In the July 2016 rating decision on appeal, the RO granted service connection with a noncompensable rating from February 12, 2016. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under DC 7816, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or; at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7816. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug. Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Here, the evidence of record demonstrates that the predominant disability is psoriasis. VA treatment records reflect sporadic flare-ups of the Veteran's psoriasis. In May 2016, the Veteran presented to the emergency room for a rash to his feet. Physical examination revealed a rash, and some drainage from the rash where it was rubbing on his shoes. The Veteran was afforded a VA examination in June 2016. The Veteran reported sporadic flare-ups since discharge from active service. He stated that his bilateral hands and feet are primarily what is affected. He indicated that he had a flare-up approximately two weeks before the examination to his hands and feet. The Veteran reported itching and burning pain during flare-ups. Afterwards he indicated the condition would resolve completely until it came back at random. The Veteran reported that he had not had a flare-up, prior to the most recent flare-up, for five years. The examiner indicated that the Veteran had used corticosteroids (Clobetasol 0.05% cream), for 6 weeks or more, but not constant, in the past 12 months. Physical examination revealed psoriasis on the Veteran's palms and feet, with erythema on the soles of the feet and palms and between the fingers and toes. It affected less than 5 percent of his exposed skin, and less than 5 percent of his total body area. The examiner found that the Veteran had limited use of the hands and feet with outbreaks of psoriasis. With the last occurrence, the examiner indicated that it was two weeks before the Veteran could use his hands or feet without significant pain. The Board finds that the evidence persuasively weighs against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran's psoriasis does not more nearly approximate at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. While the evidence of record reflects the Veteran has undergone 6 weeks or more, but not constant, treatment with corticosteroids in 2016, the Board notes that the evidence reflects such treatment has been topical. As indicated above, the Federal Circuit addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). "Systemic therapy" means treatment pertaining to or affecting the body, whereas "topical therapy" means treatment pertaining to a particular surface area. Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Johnson, 862 F.3d 1351. Such a determination should be made based on the facts of each individual case. See also Burton, 30 Vet. App. 286. In this case, the evidence indicates that the use of topical corticosteroids has been limited to the affected areas, which are noted as less than 5 percent of the Veteran's total body area. Accordingly, the Board finds that a higher rating is not warranted for use of systemic corticosteroids under the pre-August 13, 2018, regulations. The Board finds that the evidence persuasively weighs against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran's psoriasis does not more nearly approximate characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12- month period. The Board reiterates that the evidence of record reflects the use of corticosteroids has been administered through the skin, or topically. Effective August 31, 2018, VA regulations explicitly state that for the purposes of the skin disability ratings, "systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin." 38 C.F.R. § 4.118(a). Thus, the Board also finds that a higher rating is not warranted for use of systemic corticosteroids under the current regulations. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include his June 2016 statement in support of his claim, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran's disability more nearly approximates the criteria in the next higher rating. The Board also acknowledges the representative's January 2022 correspondence that a new examination is necessary since the Veteran has not been afforded an examination in many years. However, the mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Veteran has not alleged a worsening since the 2016 examination. Consequently, remand for a new examination is not necessary. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the evidence persuasively weighs against the Veteran's claim for a compensable rating for psoriasis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 30 percent for other trauma and stress related disorder The Veteran seeks an increased rating for his service-connected psychiatric disorder. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA treatment records reflect outpatient treatment. At a September 2017 outpatient visit, the Veteran reported that he continued to experience thoughts about Vietnam. He reported experiencing hypervigilance, and that at night he can hear others in the home stop breathing and listens for them to begin breathing again before going back to sleep. Mental status examination revealed euthymic mood, appropriate and goal-oriented thought processes, grossly normal attention and concentration, and intact judgment and insight. The Veteran denied suicidal or homicidal ideation. The Veteran was afforded a VA examination in June 2016. The Veteran reported a close relationship with his wife and both his adopted and biological children. He indicated that he worked on his farm, and that he used to be a heavy equipment operator. The Veteran reported that he thinks about traumatic experiences in Vietnam excessively. He reported nightmares about once per week. He stated that he intermittently felt depressed, and had hypervigilance while driving. Mild short-term memory loss was reported. No suicidal ideation, homicidal ideation, hallucinations, delusions, or paranoia were noted by the examiner. The examiner indicated symptoms of depressed mood, anxiety, and chronic sleep impairment. Overall, the examiner found the Veteran had occupational and social impairment due to mild or transient symptoms with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. The Board observes that the evidence demonstrates the Veteran's psychiatric disability is manifested by symptoms of mild memory loss, anxiety, chronic sleep impairment, and nightmares. These symptoms are contemplated by the current 30 percent rating assigned. His report of hypervigilance is also reasonably contemplated by, or akin to, the symptoms of anxiety and suspiciousness also noted in the 30 percent rating criteria. When considering these symptoms with the reported effective family and social relationships, and the ability to maintain work on his farm, the symptoms more nearly approximate the currently assigned 30 percent rating criteria. The Board recognizes the Veteran's contentions that his symptoms warrant a higher rating. However, the Board finds the VA examiner's assessment about the Veteran's symptoms and level of social and occupational functioning to be persuasive, and more probative than the Veteran's lay assertions. The Board notes that the assessments offered by the VA examiner, based on their review of the Veteran's symptoms and clinical presentation, do not support a rating in excess of 30 percent. The Board also acknowledges the representative's January 2022 correspondence that a new examination is necessary since the Veteran has not been afforded an examination in many years. However, the mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course. Palczewski, 21 Vet. App. 174. The Veteran has not alleged a worsening since the 2016 examination. Consequently, remand for a new examination is not necessary. In short, the evidence persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 50 percent rating. The criteria for a 50 percent or higher rating are not met and the appeal must be denied. 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II The Veteran seeks an increased rating for his diabetes. He asserts that if he is active during the day, his blood sugar drops. DC 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913 (Note 1). Because DC 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). VA treatment records reflect that the Veteran is enrolled in a telehealth program for his diabetes. At a November 2016 visit, the Veteran's provider noted that the Veteran was enrolled in telehealth and that his A1c was down to 7.5. The Veteran reported that he would watch his diet and try to do some exercises to manage his weight. The provider indicated the Veteran's diabetes was well-controlled. In May 2017, the Veteran appeared at a follow up visit. A1c was noted as down to 7.3, and the Veteran reported that he would try to do some exercises and watch his diet. In October 2017, the Veteran's wife reported elevated blood sugars, but was not sure why the readings were elevated. The Veteran was afforded a VA examination in July 2017. The examiner reported the Veteran's diabetes was controlled through a restricted diet, prescribed oral hypoglycemic, and insulin injections. The Veteran reported that he must regulate his activities. He stated that he must really watch his activities in the evening, or his blood sugars would crash overnight. The examiner found that there were no episodes of ketoacidosis or episodes of hypoglycemic reactions that required hospitalization over the previous 12 months. He had no history of hospitalizations or surgery associated with diabetes. He had no weight loss or loss of strength associated with diabetes. The examiner noted no other diabetic complications. The examiner found that the Veteran's diabetes mellitus limited his ability to perform physically demanding tasks to prevent hypoglycemia. The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus required only restricted diet and one or more daily injection of insulin and an oral glycemic agent during the period on appeal. While the July 2017 VA examination indicates the Veteran's diabetes mellitus was so severe or difficult to control, that he needed to avoid strenuous occupational and recreational activities, this appears to have been based on the Veteran's self-report. However, according to his VA medical records the Veteran's diabetes was well-controlled, and he was encouraged to exercise to manage his weight. See November 2016 and May 2017 VA Treatment Records. Additionally, the medical evidence of record is silent for episodes of ketoacidosis or hypoglycemic reactions less than twice a month requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. The most probative evidence, including the VA medical treatment discussed above, shows that regulation of activities was not part of medical management for the Veteran's diabetes mellitus. The Veteran is competent to report reduction in activities, and his reports are credible. Jandreau, 492 F.3d at 1377. However, the medical evidence of record is against a finding that regulation of activities was required during the period on appeal. The Board acknowledges the representative's January 2022 correspondence that a new examination is necessary since the Veteran has not been afforded an examination in many years. However, the mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course. Palczewski, 21 Vet. App. 174. The Veteran has not alleged a worsening since the 2017 examination. Consequently, remand for a new examination is not necessary. To the extent that the Veteran is claiming hypertension secondary to diabetes mellitus, type II, such is addressed in the remand below. The Veteran does not assert, nor does the record show, that he has any other contended complications of diabetes mellitus. See 38 C.F.R. § 4.119, DC 7913 (Note 1). Accordingly, the evidence persuasively weighs against assigning a rating in excess of 20 percent during the period on appeal. 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). 4. Entitlement to service connection for obstructive sleep apnea The Veteran seeks service connection for obstructive sleep apnea. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. VA treatment records show clinical assessment of sleep apnea. Thus, the Veteran has a current disability. The Board concludes that, while the Veteran has a diagnosis of obstructive sleep apnea, evidence persuasively weighs against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The service treatment records do not contain a complaint of sleep impairment or a diagnosis of sleep apnea. Although VA treatment records show a current diagnosis of sleep apnea, the current medical records do not contain any opinion or finding suggesting sleep apnea had onset in service or is otherwise related to service. The Veteran has not presented any specific argument in this regard either. The Veteran has not been afforded a VA examination to aid in substantiating this claim; however, given the lack of an in-service incurrence or evidence indicating that there may be a nexus between the sleep apnea and service, the Board finds that one is not warranted. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). At a May 2018 DRO hearing, the Veteran's representative reported that the Veteran's sleep apnea is secondary to his service-connected psychiatric condition. The Veteran is not competent to render such an etiological determination. Moreover, his lay statements, alone, are not sufficient to trigger VA's duty to assist in substantiating the claim by providing a medical examination or opinion. McLendon , 20 Vet. App. 79. The evidence persuasively weighs against finding that the Veteran's current sleep apnea was incurred in or is otherwise related to his active service. As the evidence persuasively weighs against the claim, there is no reasonable doubt to be resolved. Service connection for obstructive sleep apnea is not warranted. See 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension. The Veteran's VA treatment records reflect a diagnosis of hypertension. His military personnel records reflect that he served in Vietnam. Therefore, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). The Board takes judicial notice of the November 2018, the Veterans and Agent Orange: Update 11 (2018), publication from the National Academy of Sciences Institute of Medicine (NAS) which upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" https://appeals.cf.ds.va.gov/rea between hypertension and herbicide agent exposure. See Veterans and Agent Orange: Update 11 (2018). See November 15, 2018, press release from NAS. The Veteran was afforded a VA examination in September 2017. However, the examiner did not offer a nexus opinion with respect to the Veteran's presumed herbicide agent exposure. In view of the above, the evidence in this case is sufficient to indicate that the Veteran's hypertension may be related to the presumed in-service herbicide agent exposure. Therefore, remand is required to obtain an addendum medical opinion in light of the NAS upgrade of hypertension to the "sufficient" category. Further, in January 2022, the Veteran's representative presented information that hypertension may be secondary to the service-connected diabetes mellitus, type II. On remand, the examiner should also opine as to secondary service connection. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's hypertension is at least as likely as not related to conceded herbicide exposure during active service or is caused or is aggravated by diabetes mellitus, type II. (If hypertension is found to have been aggravated by diabetes mellitus, type II , the examiner should quantify the approximate degree of aggravation.) The examiner is advised that a negative opinion related to presumed herbicide agent exposure cannot be solely based on the absence of hypertension from VA's list of diseases associated with exposure to certain herbicide agents found in 38 C.F.R. § 3.309(e). A complete rationale should be given for all opinions and conclusions expressed. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.