Citation Nr: 1640663 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 12-27 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for irritable bowel syndrome (IBS). 3. Entitlement to service connection for sleep apnea, to include as secondary to the service-connected maxillary sinusitis with right maxillary cysts, allergic rhinitis, and/or posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for low back pain. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for joint and muscle pain. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1997, to include service in Southwest Asia during the Persian Gulf War. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2011 and June 2016 rating decisions issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2015, the Veteran testified before the undersigned at a video conference hearing. A copy of the transcript has been associated with the claims file. In March 2015, the Board reopened the previously denied claims of a gastrointestinal disorder and IBS, and then remanded the claims of entitlement to service connection for a gastrointestinal disorder, IBS, and sleep apnea to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeals have now been returned to the Board for appellate disposition. Following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the July 2015 Supplemental Statement of the Case (SSOC), additional pertinent medical evidence was added to the record. However, the Veteran's representative waived the Veteran's right to have the AOJ initially consider this evidence in a statement dated in July 2015. 38 C.F.R. §§ 20.800, 20.1304 (2015). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The issue of entitlement to an increased rating for hypothyroidism, currently evaluated as 30 percent disabling, has been raised by the record in an August 2016 statement, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). The issues of: (1) entitlement to service connection for low back pain; (2) entitlement to service connection for hypertension; (3) entitlement to service connection for joint and muscle pain; and, (4) entitlement to service connection for IBS, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. GERD has been shown to be etiologically related to the Veteran's active military service. 2. Resolving all reasonable doubt in favor of the Veteran, his sleep apnea was aggravated by his service-connected maxillary sinusitis with right maxillary cysts and service-connected allergic rhinitis. CONCLUSIONS OF LAW 1. Service connection for a gastrointestinal disorder, GERD, is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Service connection for sleep apnea, as secondary to the service-connected maxillary sinusitis with right maxillary cysts and the service-connected allergic rhinitis, is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the non-service-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2014); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. I. Gastrointestinal Disorder The Veteran seeks service connection for a gastrointestinal disorder, to include GERD. The first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. On VA examinations in April 2012 and June 2015, the Veteran was diagnosed with GERD. Thus, the Veteran has satisfied the first element of service connection. The second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's service treatment records (STRs) document that the Veteran received treatment for stomach pain in April 1986, for gastroenteritis in January 1988, for low stomach pain in February 1991, and for diarrhea in September 1996. The Veteran's active military service ended in September 1997. Post-service VA and private medical records dated from December 1998 to December 2008 show that the Veteran received intermittent treatment for constipation, blood in stool, GERD, gastritis, esophagitis, and stomach pain. A September 2009 VA Persian Gulf examination reveals that the Veteran was diagnosed with GERD. The third element of service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. Here, the claims file currently contains positive and negative medical nexus opinions. As for the positive medical nexus evidence, the June 2015 VA examiner, following a physical examination of the Veteran and a review of the Veteran's claims file, determined that the Veteran's GERD was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's STRs and Department of Defense (DoD) records from shortly after discharge were reviewed. The Veteran had a diagnosis of GERD in 1999, just 2 years after he left active duty. At that time, a gastroscopy showed "moderate gastritis and mild esophagitis." He had some complaints while he was on active duty that could be consistent with gastritis. He stated that his heartburn and current symptoms began toward the end of his military career, and the examiner found that those statements were consistent with the medical records showing gastritis and esophagitis. Therefore, the examiner found that it was at least as likely as not (50 percent or greater probability) that the current gastrointestinal disorder, to include GERD, was due to the Veteran's period of service, to include April 1986 treatment for stomach pain, January 1988 treatment for gastroenteritis, and February 1991 treatment for low stomach pain. As for the negative medical nexus evidence, on VA examination in April 2012, the Veteran reported that he had experienced recurrent constipation since the 1990s and that he had taken over-the-counter stool softener for this problem. He also indicated that he began having reflux in the 1990s after he returned from serving in Saudi Arabia. He stated that he had complained about reflux during service and had been counseled as to what medication to purchase and take. After examination and review of the claims file, the examiner diagnosed the Veteran with GERD. She noted that the Veteran's condition was a disease with a clear and specific etiology and diagnosis. She opined that it was less likely than not that the GERD was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. In rendering her rationale, the examiner explained that in the medical research published in peer-reviewed medical journals, GERD had not been associated with illnesses or exposures found during the Gulf War. She also based her opinion on the lack of evidence of complaints of GERD symptoms during the Veteran's service from 1977 to 1997. The AOJ obtained a VA addendum medical opinion in May 2016 regarding the etiology of the currently diagnosed GERD. Following a review of the claims file, the VA examiner determined that the diagnosed condition was a distinct disease with a clear and specific etiology and diagnosis. The condition has not been associated with the illnesses or exposures described in veterans returning from the Gulf War in medical research published in peer-reviewed medical journals. Therefore, in the examiner's opinion, it was less likely than not that the GERD was related to a specific exposure event experienced by the Veteran during his service in Southwest Asia. The Board finds the positive evidence outweighs the negative evidence. It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As the June 2015 VA examiner provided a detailed explanation as to why the Veteran's GERD is consistent with the symptoms the Veteran experienced during his active military service, the Board finds the probative value of the June 2015 VA examination report is greater than the cursory conclusions of the April 2012 and June 2016 VA examiners. The April 2012 and June 2016 VA examiners did not consider the Veteran's in-service complaints in providing their medical opinions; thus, their medical opinions were based on inaccurate factual premises, and cannot be considered competent evidence. The positive medical evidence is also supported by the Veteran's competent and credible lay statements of symptoms during and since his active military service. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Here, the Board finds such balance in the positive and negative evidence. As such, the claim of entitlement to service connection for a gastrointestinal disorder, to include GERD, is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Sleep Apnea The Veteran seeks service connection for sleep apnea, to include as secondary to the service-connected maxillary sinusitis with right maxillary cysts, allergic rhinitis, and/or PTSD. The first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. On VA examinations in April 2012 and June 2015, the Veteran was diagnosed with obstructive sleep apnea. Thus, the Veteran has satisfied the first element of service connection. The second element of secondary service connection requires evidence of a service-connected disability. Here, the Veteran is currently service-connected for PTSD, maxillary sinusitis with right maxillary cysts, and allergic rhinitis. Thus, the Veteran has satisfied the second element of secondary service connection. The third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. Here, the claims file currently contains only positive medical nexus opinions. In February 2015, the Veteran's private physician examined the Veteran and determined that the Veteran's currently diagnosed obstructive sleep apnea "can be worsened by his underlying sinus disease and allergies." In June 2015, the Veteran was afforded a VA examination. Following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that it was at least as likely as not that the Veteran's currently diagnosed obstructive sleep apnea was aggravated (permanent worsening of the underlying disability beyond natural progress) by the service-connected sinusitis and/or rhinitis. The examiner reasoned that chronic rhinitis does result in nasal congestion, of which the Veteran complains. Nasal congestion results in difficulty breathing, including during the nocturnal hours. This can result in difficulty in using the breathing appliance that is used in the treatment of obstructive sleep apnea. The examiner also cited to the medical literature in forming his medical opinion. The positive medical evidence is also supported by the Veteran's competent and credible lay statements describing the occurrence of his symptoms. There are no negative medical opinions of record, as the April 2012 VA examiner did not provide a medical nexus opinion concerning secondary service connection. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Here, the Board finds that the preponderance of the evidence is in favor of the claim for service connection. As such, the claim of entitlement to service connection for sleep apnea, as secondary to the service-connected maxillary sinusitis with right maxillary cysts and the service-connected allergic rhinitis, is granted. Gilbert, 1 Vet. App. at 49. ORDER The claim of entitlement to service connection for a gastrointestinal disorder, GERD, is granted. The claim of entitlement to service connection for sleep apnea, as secondary to the service-connected maxillary sinusitis with right maxillary cysts and the service-connected allergic rhinitis, is granted. REMAND Initially, in a June 2016 rating decision, the AOJ denied the claims of entitlement to service connection for joint and muscle pain, hypertension, and low back pain. In July 2016, the Veteran filed a Notice of Disagreement (NOD), appealing the denials. To date, the AOJ has not issued a Statement of the Case (SOC) in response to the Veteran's NOD. When there has been an adjudication of a claim and an NOD as to its denial, the claimant is entitled to an SOC. See 38 C.F.R. § 19.26 (2015). Thus, a remand for issuance of an SOC is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, regarding the IBS claim, a VA addendum medical opinion is necessary before the claim can be decided on the merits. Upon remand, the Veteran was afforded a VA examination in June 2015 and a VA addendum medical opinion in June 2016. The June 2015 and June 2016 VA examiners determined that the Veteran did not have a current diagnosis of IBS and provided negative medical nexus opinions based on this fact. However, in a May 2012 VA Persian Gulf examination conducted during the course of the appeal period, the examiner diagnosed the Veteran with IBS. In McClain v. Nicholson, 21 Vet. App. 319 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the service connection requirement of a current disorder being present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the [VA] Secretary's adjudication of the claim." Thus, since the Veteran had a current diagnosis for at least a portion of his appeal, the Veteran satisfies the requirement of a current diagnosis and a VA addendum medical opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a SOC concerning his claims of: (1) entitlement to service connection for low back pain; (2) entitlement to service connection for hypertension; and, (3) entitlement to service connection for joint and muscle pain. The SOC should include citations to all relevant laws and regulations pertinent to these claims. Also advise the Veteran of the time limit in which he may file a Substantive Appeal (VA Form 9 or equivalent statement) to "perfect" an appeal to the Board concerning these additional claims. 38 C.F.R. § 20.302(b) (2015). If, and only if, he perfects a timely appeal of these additional claims should the AOJ return the claims to the Board for further appellate consideration. 2. Ask the original June 2015 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for an appropriate VA examination to ascertain the etiology of his currently diagnosed IBS. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The VA examiner should thoroughly review the Veteran's VA claims file, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The examiner must express a medical opinion addressing whether it is at least as likely as not that the Veteran's currently diagnosed IBS is related to his active military service, to include the documented in-service complaints for stomach pain in April 1986, for gastroenteritis in January 1988, for low stomach pain in February 1991, and for diarrhea in September 1996. The examiner must consider the Veteran's lay statements regarding the onset of the disorder, in addition to considering the Veteran's lay statements regarding the reoccurrence of symptomatology. The basis for the opinion is to be fully explained with a complete discussion of the pertinent (lay and medical) evidence of record, as well as the medical principles involved, which may reasonable illuminate the medical analysis in the study of this case. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. 3. After the above action has been completed, readjudicate the Veteran's claim of entitlement to service connection for IBS. If the claim remains denied, issue to the Veteran and his representative a SSOC. Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs