Citation Nr: 1746977 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 16-57 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection to sleep apnea, to include as secondary to the Veteran's service-connected GERD. REPRESENTATION Appellant represented by: American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Negron, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1972 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. The Veteran was provided a hearing in August 2017 with the undersigned Veterans Law Judge, and a transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's GERD has shown symptoms of persistent recurrent epigastric distress with trouble swallowing, pyrosis, and regurgitation accompanied with shoulder pain. 2. The evidence is at least in equipoise as to whether the Veteran's sleep apnea has been aggravated by his service-connected GERD. CONCLUSION OF LAW 1. The criteria for an initial rating of 30 percent, but no higher, for GERD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 4.1, 4.7, 4.114, Diagnostic Code 7346 (2016). 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. A. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Factual Analysis The Veteran's service-connected GERD is currently rated as hernia hiatal under Diagnostic Code (DC) 7346 of the Schedule Ratings for the Digestive System. See 38 C.F.R. § 4.114, DC 7346 (2016). Under DC 7346, a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health. A 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. Here, the Veteran is currently rated as 10 percent disabling. In October 2014, the Veteran received a VA examination. The examiner diagnosed the Veteran with GERD and Barrett's esophagus. The examiner noted the Veteran's condition required continuous medication. The examiner further noted that the Veteran's symptoms included infrequent episodes of epigastric distress, pyrosis, and reflux; however, his symptoms did not impact his ability to work. The Veteran also did not have esophageal stricture, spasm esophagus or an acquired diverticulum of the esophagus. In February 2016, the Veteran was provided another VA examination. The examiner diagnosed the Veteran with GERD and stated the Veteran's condition required continuous medication. The Veteran's symptoms were infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, sleep disturbance caused by esophageal reflux, nausea, and vomiting, occurring four or more times a year. The Veteran did not have esophageal stricture, spasm esophagus or an acquired diverticulum of the esophagus and no scars related to his condition. The examiner further noted the Veteran's condition did not impact his ability to work. The Veteran was provided a hearing in August 2017. The Veteran stated he took Prilosec for his GERD daily and avoided food that would aggravate his symptoms. He also stated that he was supposed to return to the VA every six months for his condition but often would see the doctor in shorter periods of time due to issues coming up. The Veteran stated his GERD caused him to not get a good night's sleep, especially due to his panic attacks from having to wear a CPAP mask. He also stated he had to wake up in the middle of the night to vomit and often experienced regurgitation from lying down. The Veteran further stated that often times, arm pain accompanied his GERD flare-ups and that he did mention this to examiners; however, the examiners did not note it. The Veteran's spouse then testified that the Veteran often got up in the middle of the night to run to the bathroom to vomit. She also stated that they made sure to avoid spicy foods so as to not aggravate his symptoms. She stated this had been happening as long as she had known him. She stated that his constant need to get up in the middle of the night for regurgitation caused him to have a hard time getting back to sleep. The Veteran then stated that he additionally had issues swallowing, difficulty taking pills, chest pain that radiated under his shoulder blades, and heartburn. The Board notes that the Veteran's service treatment records (STRs) from May 1975 to July 1975 show complaints of chest pain that started from below his rib cage and would go up to his shoulder blades. The Veteran was subsequently diagnosed with gastritis while in service. After consideration of the medical and lay evidence, the Boards finds that an evaluation of 30 percent, but no higher, is warranted. As mentioned above, under 38 C.F.R. § 4.114, DC 7346 , a 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health. Here, the evidence shows that throughout the entire appeal period, the Veteran has suffered from difficulty swallowing, heartburn, regurgitation, and shoulder pain which have impaired his health. The Veteran's symptoms have caused deprivation of sleep and frequent visits to the doctor's office. He has become reliant on medication, which he needs to take daily in order to ease his symptoms. Therefore, resolving all reasonable doubt in favor of the Veteran, a 30 percent rating, but no higher, is warranted for the entire appeal period. However, a rating in excess of 30 percent is not warranted. The Board finds that the evidence of record does not support a rating of 60 percent. A 60 percent rating is assigned if there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. See 38 C.F.R. § 4.114, DC 7346. Although the record shows the Veteran does suffer from vomiting and occasional chest pain, there has been no showing or complaints of weight loss, and no hematemesis or melena with moderate anemia. Further, there has been no indication that the symptoms have caused severe impairment of the Veteran's health. The Veteran has been able to take care of himself and go about his daily activities. Additionally, each examiner noted that his symptoms did not impact his ability to work, and although the Veteran testified that it affected his job, he was able to keep consistent employment throughout the years. The Board also acknowledges the Veteran and his wife's assertions that he is entitled to a higher rating because his symptoms have gotten worse. The Board recognizes that lay persons are competent to report observations with regard to the severity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has considered the lay testimony of record and finds these lay statements to be credible and consistent with the rating assigned. Accordingly, an increased rating of 30 percent, but no higher, for the entire appeal period is warranted. The benefit of the doubt rule has been considered in reaching this decision. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2016). Service connection may also be established on a secondary basis. Pursuant to 38 C.F.R. § 3.310 of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. at 448 (1995). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The probative value attributed to a medical opinion issued by either VA or private treatment providers to support service connection depends on factors such as thoroughness, degree of detail, and whether there was a complete review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board must consider whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in supporting objective clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejects medical opinions that do not indicate whether the physicians actually examined the veteran, do not provide the extent of the examination, and do not provide supporting clinical data). The Court has held that a bare conclusion, even when reached by a health care professional, is not probative without an accurate factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Factual Analysis The Veteran seeks service connection for sleep apnea, to include as secondary to his service-connected GERD. The Veteran asserts that his GERD aggravates his sleep apnea. In the present case, the Board finds that the medical evidence of record, including private medical records and VA examinations, reveal that the Veteran has a current diagnosis of sleep apnea. Turning to the question of whether there is a nexus, or link, between the current shown sleep apnea and the Veteran's service-connected GERD, the evidence is at least in relative equipoise as to whether the Veteran's sleep apnea is aggravated by his service-connected GERD. In October 2014, the Veteran received a VA examination. The examiner diagnosed the Veteran with obstructive sleep apnea. The examiner noted that the Veteran underwent a sleep study in April 2014, and was put on CPAP. The examiner opined that the Veteran's sleep apnea was not at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's GERD. The examiner added that the biggest risk factor for sleep apnea was obesity, and the Veteran's BMI was 34 with increased neck circumference, and that these were the likely causative factors for his sleep apnea. In July 2016, an addendum opinion was provided. The examiner opined that the Veteran's sleep apnea was not at least as likely proximately due to or the result of his GERD. The examiner stated she reviewed the Veteran's April 2014 sleep study and articles he provided. The examiner rationalized that the articles provided regarding GERD and sleep apnea were "lay articles from internet searches and they [were] not from quality peer reviewed studies in the medical literature." The examiner further stated she performed a publication search on the relationships between GERD, acid reflux, OSA, and general sleep parameters and found there were studies which demonstrated that GERD may lead to poor sleep quality, and that nocturnal obstructive sleep apnea (OSA) events may decrease the esophageal pressure, which may also worsen GERD (and in turn may worsen Barrett's). However, the examiner provided that the evidence for the inverse causal relationship was not widely supported; that is, of a mechanism by which GERD causes OSA. The examiner noted "a higher prevalence of GERD in OSAS patients has been reported, but there are many confounding factors such as obesity, gender, and lifestyle. There is little evidence for a causal relationship between GERD and OSAS because no correlation has been found between OSAS severity and the severity of GERD symptoms or erosive esophagitis. In addition, there is not enough clinical evidence about the effect of nasal continuous positive airway pressure therapy on nighttime GER and symptoms or the effect of PPI on the apnea-hypoxia index of OSAS patients." The examiner then pointed out that the literature stated the most significant risk factors for OSA included overweight/obese body habitus, alcohol, smoking, nasal congestion, and estrogen depletion in menopause. The examiner further stated that intermittent airway obstruction was what caused OSA and that overweight/obese body habitus (and resultant changes such as increased neck circumference) remained the single largest factor for the development of OSA. The examiner then noted that the Veteran also had the next two largest statistical risk factors, which were male gender and age over 55. Following this addendum opinion, the examiner provided another addendum opinion in November 2016. The examiner reiterated her opinion that the Veteran's sleep apnea was not at least as likely as not (less than 50 percent probability) proximately due to or the result of his GERD. The examiner additionally opined that by the same rationale provided in the first addendum, there was insufficient evidence that the Veteran's sleep apnea was at least as likely as not aggravated beyond its natural progression by the Veteran's service-connected GERD. The Veteran has also provided private medical records from his April 2014 sleep study, which found that the Veteran had obstructive sleep apnea. The Veteran's treating physician, who is a diplomate of the American Board of Sleep Medicine, recommended the use of CPAP, upper airway surgery, or an oral appliance for treatment. In an April 2015 letter, the Veteran's private treating physician provided an opinion that it was quite likely that the Veteran's known GERD adversely affected his obstructive sleep apnea and vice versa. He stated that these relationships were well known and well documented in the medical literature. The Veteran has also submitted medical treatises in support of his claim. These treatises discussed the aggravating effect that GERD had on sleep apnea. On balance, the Board notes that all of the medical opinions that were obtained or submitted were rendered by appropriate medical professionals or specialists with clinical expertise in the areas required in this case. Additionally, the opinions were all supported by medically plausible rationale. For these reasons, the Board cannot find the negative October 2014, July 2016, and November 2016 VA opinions to be more probative than that of the positive April 2015 private opinion. Similarly, the Board cannot find that the positive April 2015 private opinion is more probative than the negative October 2014, July 2016, and November 2016 opinions. Thus, the overall record is in relative equipoise as to whether the Veteran's sleep apnea was aggravated by his service-connected GERD. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for sleep apnea, as secondary to service-connected GERD, have been met. Reasonable doubt has been resolved in favor of the Veteran in this matter. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to an initial rating evaluation of 30 percent, but no higher, for GERD for the entire appeal period is granted. Entitlement to service connection for sleep apnea, as aggravated by service-connected GERD, is granted. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs