12-11 733
12-11 733
| Board of Vet. App. | May 31, 2017Background
- Veteran served on active duty 1979–1999 and appealed VA RO denials (Nov 2008) for service connection: obstructive sleep apnea, diabetes mellitus type II, hypertension, and headaches.
- VA development included service and VA records, private treatment records, and VA examinations; Veteran withdrew requested Board hearing; case remanded in 2014 and substantially complied with remand directives.
- Sleep apnea: diagnosed by sleep study in March 2005; Veteran and lay witnesses report snoring and spouse reports witnessed apneic episodes beginning in service; no in-service diagnosis or consistent contemporaneous medical documentation.
- Diabetes: private records show onset reported circa 2001–2003; no diabetes diagnosis in service or within one year post-discharge to trigger presumptive service connection.
- Hypertension and headaches: not adjudicated on the merits—Board remanded for VA medical opinions to determine in-service onset or nexus and potential secondary relationship (headaches possibly secondary to hypertension).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — sleep apnea | Sleep apnea began in service (snoring, witnessed apneic episodes) | No in-service diagnosis; VA exam found diagnosis in 2005 and nexus less likely than not | Denied — preponderance against service connection; May 2015 VA exam more probative than lay statements |
| Service connection — diabetes mellitus | Diabetes is secondary to sleep apnea or directly related to service | No service diagnosis; no compensable manifestation within one year post-service; no nexus shown | Denied — presumptive and direct service connection not met |
| Service connection — hypertension | (Representative noted in-service elevated readings; claimant seeks direct service connection) | Records show some isolated elevated BP readings but no consistent in-service diagnosis; medical opinion required | REMANDED — obtain VA opinion on in-service onset/nexus |
| Service connection — headaches | Headaches began after in-service MVA (Aug 1980) or secondary to hypertension | No nexus opinion in file; private record links headaches to hypertension | REMANDED — obtain VA opinions re: onset, relation to service accident, and whether headaches are secondary/ aggravated by hypertension |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010) (elements required for service connection and nexus explained)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (nexus requirement for service connection)
- Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (read medical opinions as a whole when assessing adequacy)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (limits on competency of lay nexus evidence)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (when lay evidence can establish diagnosis)
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (when VA must provide medical examination/opinion)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (reasonable doubt rule and burden considerations)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (right to submit additional evidence after remand)