Citation Nr: 1736591	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-22 901	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a respiratory disorder, including sleep apnea, to include as a result of chemical exposure in service.

2.  Entitlement to service connection for hypertension, to include as a result of chemical exposure.

3.  Entitlement to service connection for a bilateral knee disorder.


ATTORNEY FOR THE BOARD

T.Y. Hawkins, Counsel






INTRODUCTION

The Veteran served honorably on active duty service with the Air Force from November 1981 to November 1989.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In February 2014 and September 2016, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development.  As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claims.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  The probative and competent evidence fails to establish that the Veteran's sleep apnea manifested during service, and his current sleep apnea is not otherwise shown to be related to a disease, injury or incident of service, to include chemical exposure.

2.  The probative and competent evidence fails to establish that the Veteran's hypertension manifested during service or to a compensable degree within one (1) year of separation from service, and his current hypertension is not otherwise shown to be related to a disease, injury or incident of service, to include chemical exposure.

3.  The probative and competent evidence fails to establish that the Veteran was diagnosed with a bilateral knee disorder during service, or arthritis of the knees to a compensable degree within one year of separation from service, and his current bilateral knee degenerative joint disease is not otherwise shown to be related to a disease, injury or incident of service. 
CONCLUSIONS OF LAW

1.  The criteria for service connection for a respiratory disorder, to include sleep apnea, are not met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2016).

2.  The criteria for service connection for hypertension are not met.  38 U.S.C.A. 
§§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016).

3.  The criteria for service connection for a bilateral knee disorder are not met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Entitlement to service connection for a respiratory disorder, to include sleep apnea.

The Veteran contends that he has sleep apnea as a result of exposure to chemicals, including carbon dioxide, while working as a fire protection specialist during active duty.  He further claims that he began to experience breathing problems in September 1985 after the extraction of his wisdom teeth.  

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

The question for the Board is whether his current sleep apnea developed during service, or is the result of a disease, injury or incident of service.
 
The Board finds that competent, credible, and probative evidence fails to establish that his sleep apnea is etiologically related to his active duty service.

Review of the Veteran's service treatment records fails to show any evidence of a respiratory disorder during his service enlistment examination.  While service treatment records in June and August 1985 show that he was diagnosed with bronchitis, there is no evidence that the condition was chronic, as subsequent periodic medical examinations showed no evidence of the disorder.  A September 1986 service records shows that the Veteran indeed worked in fire, ground training and rescue service, where he was tasked with inspecting facilities for fire hazards and conducting refill operations of fire extinguishers.  However, pulmonary function tests performed in September 1987, for the sole purpose of clearing him for the use of for protective respiratory gear (not due to an illness), yielded normal results.  In a June 1988 medical history report, the Veteran wrote that "I am in perfect health, no medications currently taken," and answered "no" to all questions concerning whether he ever had shortness of breath or asthma.  During a January 1989 flying training report, there were no findings of a respiratory or breathing disorder.	

VA post-service treatment reports show that the Veteran was not diagnosed with obstructive sleep apnea until July 2010, nearly 30 years after service.  The Veteran has not explained why no treatment was rendered for the condition for many years.  

The Veteran was afforded a VA examination in April 2014, in which the examiner noted that he was first diagnosed in 2010 and opined that it was less likely than not that the disorder was incurred in, or caused by the claimed in-service injury, event, or illness.  However, because he incorrectly stated that there was no evidence that the Veteran was ever exposed to harmful chemicals, VA requested an addendum opinion from the examiner.  In December 2015, the examiner again opined that, because there was no documented evidence of respiratory disorder, sleep disturbance or symptoms of sleep apnea found in the service treatment records, it was less likely than not that these conditions are related to any incident of active duty service.  He further opined that sleep apnea is associated with pharyngeal anatomical abnormality causing breathing obstruction when sleeping and is not associated with noxious substances.  Again, however, he incorrectly stated that there was no documented evidence of noxious exposure or respiratory disorder in military service.  

In March 2016, the Veteran's file was sent for review by a different VA examiner, who opined that obstructive sleep apnea is a disorder of upper airway obstruction, such as micrognasia, deviated nasal septum, stout neck, obesity etc.  He concluded that it was not related to a history of chemical exposures, and thus opined that it was less likely than not that the Veteran's obstructive sleep apnea was a result of his military service.

In September 2016, the Board remanded the Veteran's claim to the AOJ for an opinion from a VA examiner to address the Veteran's in-service respiratory complaints.  In May 2017, a third VA examiner opined that it was less likely than not that his obstructive sleep apnea began, or was incurred during a period of active duty service.  She explained that a review of the treatment records showed no evidence of obstructive sleep apnea during service and that the disorder was not diagnosed until July 2010.  She also noted that the Veteran's pulmonary function tests performed during service were normal and that the 1985 incidence of bronchitis was acute without residuals, as shown by his normal pulmonary function tests.  Significantly, like the previous examiner, she stated that obstructive sleep apnea is not caused by chemical exposures, but is a disorder of upper airway obstruction, such as micrognasia, deviated nasal septum, stout neck, obesity, etc.  

Collectively, while there were some concerns with the examinations, in total, they contain evidence against the claim.  They tend to show that the sleep apnea condition is not related to chemical or asbestos exposure, but instead is due to physical changes.  They also show that the condition was less likely incurred in service.  

Accordingly, Board finds that the competent, credible, and probative evidence fails to establish that the Veteran's sleep apnea is the result of any event during service, to include chemical exposure.  Moreover, as the probative evidence fails to show that he experienced any chronic breathing problems, there is no link between his current sleep apnea and his in-service dental work.

Entitlement to service connection for hypertension.

The Veteran initially claimed that he developed hypertension while he was stationed at San Vito Air Station in Italy as a result of chemical exposure.  He later said that he had hypertension before going to San Vito, but believed the extraction of his wisdom teeth had aggravated the disorder.

In addition to direct service connection, under 38 C.F.R. § 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added).  For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).   

Service connection for certain chronic diseases, including hypertension and arthritis, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§3.307(a)(3), 3.309(a) (2016).

For VA rating purposes, hypertension means that the diastolic pressure is predominantly 90 mm Hg or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 mm Hg or greater, with a diastolic pressure of less than 90 mm Hg.  38 C.F.R. § 4.104, Diagnostic Code 7101 .

The question for the Board is whether the Veteran's current diagnosis of hypertension either began during active duty service, began within one year of separation from service, or is etiologically related to an in-service disease, injury or event, including his claimed chemical exposure.  

The Board finds that competent, credible, and probative evidence establishes that the Veteran's hypertension 	neither manifested during service, nor within one year of service separation, and is not etiologically related to an in-service disease, injury or event, including chemical exposure.

The Veteran's service treatment records fail to show any evidence that he had symptoms of, or was diagnosed with hypertension during active duty.  All blood pressure readings in service were within normal limits for VA purposes.  Although the treatment reports show that during a dental examination in September 1985, in which he was to have three impacted wisdom teeth removed, the orders were for this to occur at San Vito, not prior to being stationed there, as he claims.  There was also no mention of any concerns about high blood pressure or any subsequent reports that, as he asserts, he had to wait three days for his blood pressure to come down before he could undergo dental surgery.  Further, during his January 1989 examination, his blood pressure readings were 120/82, 118/84 and 122/74, all within normal limits.  In addition, on the accompanying medical history report, the Veteran specifically denied ever having hypertension.  As such, there is no probative evidence that hypertension manifested during service.  Moreover, because there are no available treatment records for the one-year period following his separation from service in November 1989 showing a diagnosis of hypertension, service connection for hypertension on a presumptive basis is not for application.

VA post-service treatment records show that during his initial VA Medical Center (VAMC) outpatient visit in April 2010, the Veteran reported having a history of hypertension.  At that time, he was diagnosed with hypertension, obesity and alcohol dependence.  	

During his April 2014 VA examination, the examiner noted that there was no evidence of elevated blood pressure readings in the service treatment records that would suggest underlying hypertension.  He further said that there was no elevated blood pressure in 1985 associated with the Veteran's tentative tooth extraction, as his blood pressure at that time was 120/60.  Accordingly, he opined that it was less likely than not that the current hypertension is the result of active duty service.  The examiner reviewed the Veteran's claims file again in December 2015, and again opined that there were no elevated blood pressure readings in the service treatment records between 1981 to 1989, as all were "normative," as stated on the previous examination.  He opined that any hypertension diagnosis after service would not be related to military service.

In March 2016, another VA examiner reviewed the Veteran's claim file and opined that it was his medical professional opinion that the Veteran's hypertension claim was not supported by his service history or his claim of situationally-elevated blood pressures.  He said that there were no findings of abnormal elevated blood pressures during his active duty time period, and thus concluded that it was less likely than not that the Veteran's hypertension was incurred during military service.

In May 2017, the Veteran's file was reviewed by another examiner in order to obtain an opinion concerning the relevance of a November 1982 blood pressure reading of 140/74.  The examiner opined that blood pressure of 140/74 is normal and is not medically considered as elevated/abnormal.  She thus opined that, as there was no documented evidence of elevated blood pressure during or proximate to service, the Veteran's hypertension was less likely than not due to active duty service.

Accordingly, Board finds that the competent, credible, and probative evidence fails to establish that the Veteran's current hypertension is the result of any event during service, to include chemical or asbestos exposure or the extraction of his wisdom teeth.





Entitlement to service connection for a bilateral knee disorder.

The Veteran claims that he injured his left knee in August 1983 while completing fire rescue school at Chanute Air Force Base in Illinois, and later pulled ligaments in both knees while extracting personnel from a B-52 aircraft.  

The question for the Board is whether his current bilateral knee disorders, diagnosed as degenerative joint disease, either began during service, manifested within one year of separation from service, or are etiologically related to some injury, disease or event during service.

The Board finds that the competent, credible, and probative evidence fails to establish that his bilateral knee disorder is the result of active duty service.

The Veteran's service treatment records contain no complaints of, treatment for, or a diagnosis of a bilateral knee disorder during service, and there are no treatment reports to show that he ever sought treatment for a left knee injury in 1983 or for pulled bilateral ligaments in his knees at any time thereafter.  As discussed above, on a June 1988 medical history report, the Veteran reported that he was in "perfect health."  He also denied having ever having painful or swollen joints; arthritis, rheumatism or bursitis; bone, joint or other deformity; or "trick" or locked knee.  Several supplemental medical screening checklists also show that the Veteran denied ever having knee problems.  In addition, because there is no evidence that he developed arthritis in either knee to a compensable degree within one year of separation of service, service connection for arthritis of the bilateral knees is not for application.

During his April 2010 initial visit to the VAMC, the Veteran claimed to have a history of bilateral knee pain, but denied major degenerative joint disease for both knees.

During the April 2014 VA examination, the examiner opined that there was no documented correlation between the Veteran's present arthritic knees and his military service.  He further opined that his degenerative arthritis diagnosis was made after his military service and documented in his VA medical record.  He added that there were no documented injury or knee complaints in the service treatment records.  In a December 2015 addendum report, the examiner again stated that there was no evidence of a knee injury in service and no documented knee condition that would possibly lead to a degenerative joint disorder.  Rather, he stated that degenerative joint disease occurs gradually over a period of years and there was no evidence documenting such a condition had its onset during military service.

In May 2017, another VA examiner reviewed the claim file in order to address the Veteran's personal lay statements that he had injured his knees in service and had had symptoms of knee pain ever since.  She opined that the Veteran's claimed bilateral knee disorders were less likely than not to have had their onset in, or were incurred during a period of active duty service.  While she noted that the service treatment records were void of any documented chronic bilateral knee disability, any report of injuries that are suspect for current findings of osteoarthritis, or evidence of a chronic bilateral knee disorder proximate to service, she also opined that the Veteran's 1989 assertion that he was "in perfect health, no medications currently taken" was counter to his current assertion of chronic knee pain following purported bilateral knee injuries.

Accordingly, the Board finds that the competent, credible, and probative evidence fails to establish that the Veteran's current bilateral degenerative joint disease is the result of any disease, injury or event during service.



ORDER

Entitlement to service connection for a breathing disorder, including sleep apnea, to include as a result of chemical exposure, is denied.

Entitlement to service connection for hypertension, to include as a result of chemical exposure, is denied.

Entitlement to service connection for a bilateral knee disorder is denied.




____________________________________________
M. TENNER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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