Citation Nr: 23039733 Decision Date: 07/19/23 Archive Date: 07/19/23 DOCKET NO. 19-38 316 DATE: July 19, 2023 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for dizziness is remanded. FINDINGS OF FACT 1. The Veteran's hypertension is shown to be the result of exposure to herbicidal agents during his service in the Republic of Vietnam. 2. The evidence of record persuasively weighs against finding that sleep apnea began during 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 hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1969 to October 1970. These matters come to the Board of Veterans' Appeals (Board) from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran filed a notice of disagreement (NOD) with regard to multiple claimed disabilities. A statement of the case (SOC) was issued in September 2019. In November 2019, he submitted a substantive appeal with regard to the hypertension, sleep apnea, dizziness and headache issues. The Board acknowledges that the SOC and supplemental SOC (SSOC) reflect "a neck condition, to include dizziness." The Veteran, however, did not timely perfect an appeal with regard to a neck condition, and only perfected an appeal with regard to dizziness; thus, the recharacterization of the issue above. Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Hypertension The Veteran seeks service connection for hypertension, which he asserts is linked to his service in the Republic of Vietnam. The evidence clearly establishes that the Veteran had service in the Republic of Vietnam, in which case he is presumed to have experienced environmental exposures, including to herbicidal agents such as Agent Orange. See 12/24/1970 Certificate of Release or Discharge from Active Duty (DD 214). VA treatment records reflect a diagnosis of and treatment for hypertension. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain designated herbicide agents during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the law provides that specific diseases shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). Where the disability on appeal is alleged to be the result of exposure to herbicides but is not a listed presumptive disability under 38 C.F.R. § 3.309 (e), service connection is not precluded. Rather, the Veteran may demonstrate entitlement based on proof of direct causation in the form of medical evidence linking the Veteran's claimed disability to his service and his exposure to herbicides. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). On August 10, 2022, the Honoring Our PACT Act was signed into law indicating sufficient medical evidence that hypertension can be associated with herbicide exposure, to include Agent Orange. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. While hypertension will not be added as a presumptive condition until October 1, 2026, the Board has considered the 2018 National Academy of Sciences (NAS) Update and the fact remains that VA has already conceded the direct relationship between Agent Orange exposure and the development of hypertension. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). Accordingly, the Board finds entitlement to service connection for hypertension is warranted based on this new evidence on a direct basis. 38 C.F.R. § 3.304. Sleep apnea The Veteran asserts that he has sleep apnea that is due to active service. 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. The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, the persuasive evidence of record weighs against finding that this began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. § 1110. Service treatment records do not reflect any complaints or treatment for sleep apnea or symptomatology related thereto. An October 1970 Report of Medical Examination completed for separation purposes does not reflect a diagnosis of sleep apnea. 01/30/2014 STR-Medical at 11. Sleep apnea was initially diagnosed in March 2018. 06/08/2020 CAPRI at 287. Thus, sleep apnea was initially diagnosed over four decades after separation from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). The Veteran has not offered any specific lay assertions as to why he believes his sleep apnea is due to service. The NOD and substantive appeal do not reflect any specific assertions from the Veteran as to the basis for his belief that service connection is warranted for sleep apnea. There is no lay or medical evidence which supports a relationship to his active service. The evidence of record does not support a finding that sleep apnea is associated with service. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, the evidence of record does not suggest that sleep apnea is due to service. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under McLendon, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Courts have held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Consequently, a VA examination is not warranted for the sleep apnea service connection claim. McLendon, 20 Vet. App. at 83. While the Veteran may believe his sleep apnea is due to service, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/anatomical relationships/pathology/interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The claim of service connection for sleep apnea is denied. REASONS FOR REMAND The Veteran has claimed service connection for headaches and dizziness as due to service and due to a service-connected disability, to include hypertension. VA treatment records reflect that headaches are on his problem list. 06/19/2020 CAPRI at 17. He has also periodically complained of headaches and dizziness. 04/02/2013 CAPRI at 258; 06/08/2020 CAPRI at 620. In December 2020, the Veteran underwent a C&P headaches examination wherein the examiner did not proffer a diagnosis. The Veteran reported a gradual onset of headaches in service. He reported when the headache starts he gets it for 2 to 3 days in the front and side of his head which will last for a minute then it will go away and then it may come back a few hours later. He reported that his headaches are getting worse and come more often and last longer. He experiences headaches every day which will last for 2 to 3 minutes causing him to sit down until the headache goes away then he can move. Despite these subjective complaints, the examiner checked the 'No' box for whether he experiences headache pain. The examiner noted that there was no objective evidence of headaches. The examiner stated that there is no objective evidence of complaint, treatment, or diagnosis of headache in the service treatment records. The complaint of headache was deemed subjective only, therefore a nexus was not found. In December 2020, the Veteran underwent a C&P ear conditions examination wherein the examiner did not proffer a diagnosis. The Veteran reported that he started noticing he had dizziness one day when he was walking around the house, and he felt dizzy. He sat down and drank some water and when he stood to walk he had dizziness. He reported he once passed out. In 2009, he was walking in his house when he felt dizzy, and he broke his right ankle. He reported when he walks around for a long time or looks at a computer screen for long, he would become dizzy. He reported his dizziness is getting worse; he reported he feel dizzy multiple times every day. Reading books, watching TV and prolonged physical activities makes the dizziness worse. The examiner stated that during service, dizziness was acute only. There is no evidence of chronicity of care and symptoms are subjective only. A nexus has not been established. The Board has determined that the Veteran must be afforded another examination to clarify whether he has a chronic headache disability, whether any such disability is due to service or due to a service-connected disability, or whether he experiences headache symptomatology due to a service-connected disability. Also, the Board notes that despite the examiner's statement that service treatment records are negative, a June 1970 service treatment record does reflect complaints of headache and lightheadedness. 01/30/2014 STR-Medical at 19. On Remand, associate updated VA treatment records for the period from December 5, 2022. The matters are REMANDED for the following actions: 1. Associate updated VA treatment records for the period from December 5, 2022. 2. Schedule the Veteran for an examination with a clinician with appropriate expertise to assess the nature and etiology of his claimed headache disability. The examiner should review the claims folder in conjunction with the examination. Any appropriate testing should be conducted. The examiner should address the following: a) Please clarify whether the Veteran has a chronic headache disability, or whether he experiences headaches as a symptom of another disability. b) Did a headache disability at least as likely as not (approximately 50 percent or better) manifest during active service or is it otherwise due to active service? c) Is a headache disability at least as likely as not (approximately 50 percent or better) caused by a service-connected disability, to include bilateral hearing loss (100%), posttraumatic stress disorder (PTSD) (70%); glaucoma, bilateral eyes (30%); tinnitus (10%) or hypertension? d) Is a headache disability at least as likely as not (approximately 50 percent or better) aggravated (i.e., worsened beyond the normal progression of the disease) by a service-connected disability, to include bilateral hearing loss (100%), posttraumatic stress disorder (PTSD) (70%); glaucoma, bilateral eyes (30%); tinnitus (10%) or hypertension? The examiner is advised that aggravation can include temporary worsening or flare-ups. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the headache disability prior to aggravation by the service-connected disability. Please note, causation and aggravation are separate concepts and must be addressed independently. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Schedule the Veteran for an examination with a clinician with appropriate expertise to assess the nature and etiology of his claimed dizziness disability. The examiner should review the claims folder in conjunction with the examination. Any appropriate testing should be conducted. The examiner should address the following: a) Please clarify whether the Veteran has a chronic disability manifested by dizziness, or whether he experiences dizziness as a symptom of another disability. b) Did a dizziness disability at least as likely as not (approximately 50 percent or better) manifest during active service or is it otherwise due to active service? c) Is a dizziness disability at least as likely as not (approximately 50 percent or better) caused by a service-connected disability, to include bilateral hearing loss (100%), posttraumatic stress disorder (PTSD) (70%); glaucoma, bilateral eyes (30%); tinnitus (10%) or hypertension? d) Is a dizziness disability at least as likely as not (approximately 50 percent or better) aggravated (i.e., worsened beyond the normal progression of the disease) by a service-connected disability, to include bilateral hearing loss (100%), posttraumatic stress disorder (PTSD) (70%); glaucoma, bilateral eyes (30%); tinnitus (10%) or hypertension? The examiner is advised that aggravation can include temporary worsening or flare-ups. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the dizziness disability prior to aggravation by the service-connected disability. Please note, causation and aggravation are separate concepts and must be addressed independently. (Continued on the next page) ? All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.