Citation Nr: 1323740	
Decision Date: 07/25/13    Archive Date: 08/06/13

DOCKET NO.  05-32 254A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for a sleep disorder to include obstructive sleep apnea.  

2.  Entitlement to service connection for a gastrointestinal disorder to include irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), and diverticulosis.  


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel



INTRODUCTION

The Veteran had active service from November 1967 to November 1969.  He served in the Republic of Vietnam.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Muskogee, Oklahoma, Regional Office (RO) which, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claims of entitlement to both back injury residuals with low back pain and coronary artery disease (CAD) and denied service connection for hypertension, a sleep disorder, a gastrointestinal disorder to include IBS, GERD, and diverticulitis, a skin disorder, and sexual dysfunction.  In April 2008, the Board, in pertinent part, determined that new and material evidence had been received to reopen the Veteran's claims of entitlement to service connection for both back injury residuals and CAD and remanded the issues of service connection for a back disorder to include injury residuals, a cardiovascular disorder to include CAD and hypertension, a sleep disorder, a gastrointestinal disorder to include IBS, GERD, and diverticulitis, a skin disorder, and a disorder manifested by sexual dysfunction to the RO for additional action.  

In June 2009, the RO granted service connection for lumbosacral strain, degenerative disc disease, and arthritis; assigned a 20 percent evaluation for those disabilities; granted service connection for idiopathic dermatitis; assigned a 30 percent evaluation for that disability; and effectuated the awards as of July 16, 2004.  In March 2010, the Board remanded the Veteran's appeal to the RO for additional action.  

In August 2011, the RO, in pertinent part, granted service connection for CAD with coronary artery bypass graft (CABG) residuals; assigned a 60 percent evaluation for that disability; granted service connection for CABG scar residuals; assigned a noncompensable evaluation for that disability; and effectuated the awards as of March 17, 1997.  In February 2012, the RO granted service connection for erectile dysfunction; assigned a noncompensable evaluation for that disability; granted special monthly compensation based on the loss of use of a creative organ; and effectuated the awards as of July 16, 2004.  

In August 2012, the Board requested opinions from the Veterans Health Administration (VHA) experts in gastroenterology and sleep medicine.  In December 2012, the requested VHA sleep medicine opinion was incorporated into the record.  In December 2012, the Board determined that the VHA opinion was insufficient and requested that the VHA opinion be clarified.  In January 2013, an amended VHA sleep medicine opinion was incorporated into the record.  In March 2013, the requested VHA gastroenterology opinion was incorporated into the record.  In April 2013, the Veteran was provided with copies of the VHA opinions and the addendum thereto.  In April 2013, the Veteran indicated that he had no further argument or evidence to submit.  

That action requested by the March 2010 Board remand was accomplished and the case subsequently returned to the Board.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders).  The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence.   

The Board has reframed the issue of service connection for a sleep disorder as service connection for a sleep disorder to include obstructive sleep apnea in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim).  


FINDINGS OF FACT

1.  Service connection is currently in effect for posttraumatic stress disorder (PTSD), CAD with CABG, idiopathic dermatitis, lumbosacral strain with degenerative disc disease, and arthritis, diabetes mellitus, tinnitus, CABG scar residuals, bilateral hearing loss, and erectile dysfunction.  

2.  A sleep disorder was not shown during active service or for many years thereafter.  

3.  Obstructive sleep apnea has been shown to be etiologically related to the Veteran's service-connected PTSD.  

4.  IBS has been shown to have originated during active service.  


CONCLUSIONS OF LAW

1.  Obstructive sleep apnea was incurred proximately due to or as the result of the Veteran's PTSD.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a), 3.326(a) (2012).  

2.  IBS was incurred during active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012).  In this decision, the Board grants service connection for both obstructive sleep apnea and IBS.  Therefore, no further discussion of VA's duties to notify and to assist is necessary.  


II.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  T

The claimed disabilities are not "chronic diseases" enumerated under 38 C.F.R. § 3.309(a).  Therefore, the provisions of 38 C.F.R. § 3.303(b) are not for application.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995); See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).  Service connection is currently in effect for PTSD, CAD with CABG, idiopathic dermatitis, lumbosacral strain with degenerative disc disease, and arthritis, diabetes mellitus, tinnitus, CABG scar residuals, bilateral hearing loss, and erectile dysfunction.  

A.  Sleep Disorder

The Veteran's service treatment records do not refer to a sleep disorder or impair sleep.  
In his July 2004 claim for service connection, the Veteran stated that his treating VA physicians had prescribed him Valium for a sleeping disorder.  

A November 2008 sleep study from B. Kim, M.D., advances an impression of obstructive sleep apnea.  

A December 2008 VA evaluation notes the November 2008 impression of obstructive sleep apnea.  The VA nurse practitioner noted that she found "no literature to associate" the Veteran's sleep apnea with his service-connected PTSD.  

At a January 2010 VA examination for compensation purposes, the Veteran was diagnosed with obstructive sleep apnea.  The examiner opined that "his current sleep apnea syndrome is not likely related to his military service as [his service treatment records] revealed no evidence of any chronic sleep disorder while he was in service and is more likely due to or the result of his increased body mass." 

At a December 2011 VA examination for compensation purposes, the Veteran was diagnosed with obstructive sleep apnea.  The examiner opined that the Veteran's sleep apnea "is not likely related to his military service as [the service treatment records] review revealed no evidence of any chronic sleep disorder while he was in service and is more likely due to or the result of his increased body mass index."  In a January 2012 addendum to the December 2011 VA examination report, the VA physician's assistant commented that the Veteran's sleep apnea was not "aggravated by his service, but rather due to his advancing age, obesity over 248 lbs, and lack of physical exercise" and did "not advance beyond [its] natural progression due to the military service."  

The January 2013 amended VHA sleep medicine opinion notes that the clinical record had been reviewed.  The physician opined that:

In my opinion, with the evidence reviewed and the association with PTSD (a condition for which he is considered 100% service-connected), insomnia is more likely than not (more than 50% probability) related to [the Veteran's] prior military service.  

Also in my opinion, given that the records do not show evidence of complaints, diagnosis or treatment for obstructive sleep apnea during service and that the appellant gained significant amount of body weight after discharge, that he was diagnosed with mild sleep apnea much later, obstructive sleep apnea is less likely than not (less than a 50% probability) related to [the Veteran's] prior military service.  

Addendum:  The interaction between insomnia or PTSD and obstructive sleep apnea is complex and still not completely elucidated.  Several studies found that patients with PTSD have disproportionally higher prevalence of obstructive sleep apnea.  On the other hand, a couple of publications found that short sleep time (which can be seen in either PTSD or insomnia) may predispose to more collapsible upper airway, hence these patients are more likely to suffer from obstructive sleep apnea.  While definite evidence is still being assessed, it is my opinion that, in this case, PTSD (a condition deemed 100% service-connected) is as likely as not (probability of 50% or more) to have aggravated or increased in severity beyond its natural progression the obstructive sleep apnea.  

The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal.  A sleep disorder was not shown during active service or for many years thereafter.  The Veteran was diagnosed with obstructive sleep apnea by a November 2008 sleep study.  Such disability has not been shown to have originated during active service.  No medical professional has advanced a relationship between active service and the Veteran's obstructive sleep apnea.  
The January 2013 amended VHA sleep medicine opinion conveys that the Veteran's obstructive sleep apnea was etiologically related to his service-connected PTSD.  The VA physician supported his opinion with reference to several studies linking PTSD with a higher prevalence of obstructive sleep apnea.  While the December 2008 VA evaluation notes that the examining nurse practitioner could find "no literature to associate" the Veteran's sleep apnea with his service-connected PTSD, the Board finds that such inconclusive research does not rebut the January 2013 VHA opinion.  

The Veteran's nonservice-connected obstructive sleep apnea has been found to been etiologically related to his service-connected PTSD.  Therefore, the Board concludes that service connection for obstructive sleep apnea is now warranted.  38 C.F.R. § 3.310(a).  


B.  Gastrointestinal Disability 

The Veteran's service treatment records make no reference to a gastrointestinal disorder or complaints.  

In a March 1997 written statement, the Veteran conveyed that he had diverticulitis.  At a June 1997 VA examination for compensation purposes, the Veteran presented a history of diverticulitis diagnosed during a 1995 colonoscopy.  The Veteran was diagnosed with chronic diverticulitis.  

In his July 2004 claim for service connection, the Veteran advanced that service connection for a gastrointestinal disability to include IBS and GERD was warranted.  He stated that he experienced constipation, diarrhea, and diverticulitis.  

At an October 2008 VA examination for compensation purposes, the Veteran complained of GERD since 1969 and diverticulosis since 1985.  He was diagnosed with reflux and diverticulitis.  The examiner opined that his diverticulosis was not shown in the service treatment records and was "multifactorial in nature.  She noted that "I find no literature support to PTSD and diverticulosis."  
At the January 2010 VA examination for compensation purpose, the Veteran was diagnosed with GERD.  The examiner commented that the Veteran's "subjective acid reflux or GERD condition is not likely related to his military service" and "is more likely due to or the result of chronic tobacco smoking, obesity, and dietary habits."  

At the December 2011 VA examination for compensation purposes, the Veteran reported that he experienced abdominal pain while in the Republic of Vietnam after taking anti-malarial medication.  The Veteran was diagnosed with GERD, diverticulitis, and colon resection residuals.  In the January 2012 addendum to the December 2011 VA examination report, the examining physician's assistant opined "with regard to the patient's [gastrointestinal] disorder-GERD, I do not believe this was aggravated by his service, but rather due to his advancing age, obesity over 248 lbs, and lack of physical exercise" and "have not advance beyond their natural progression due to the military service."  

The March 2013 VHA gastroenterology opinion states that:

With regards to GERD, it is not likely that symptoms are due to his military service.  [The Veteran] appears to have several risk factors for GERD that are more likely causes of his symptoms including obesity and smoking.  Additionally, symptoms of GERD are often related to dietary habits including the use of caffeine, chocolate, tomato based products and fatty foods.  These are all much more likely causes of reflux than to be service related.  

Diverticulosis /diverticulitis is also unlikely to be related to military service.  Major risk factors for the development of diverticular disease include advancing age, obesity and lack of physical exercise.  Additionally, dietary factors may play a role in diverticulosis including a low fiber, high fat diet.  [The Veteran] appears to have several of these risk factors, all of which would be more likely causes of diverticular disease than to be service related.  

IBS has less well established risk factors but is more prevalent in females than males and tend to occur in younger patients.  There is a link between people who have suffered psychological trauma and IBS.  Therefore, IBS may be related to [the Veteran's] service if it has been determined that he suffered psychological trauma during his military service.  He does not appear to have any other classic risk factors for IBS, but not all people with IBS have risk factors.  

The March 2013 VHA gastroenterological opinion concludes that the Veteran had IBS which "may be related to service if it has been determined that he suffered psychological trauma during his military service."  The Veteran is currently service-connected for PTSD secondary to his combat experiences in the Republic of Vietnam.  Given this fact, the Veteran clearly "suffered psychological trauma during his military service."  In the absence of any evidence to the contrary and upon resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection is now warranted for IBS.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

ORDER

Service connection for obstructive sleep apnea is granted.

Service connection for IBS is granted.


____________________________________________
J. T. HUTCHESON
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs