Citation Nr: 1802785 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-13 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for sinusitis. 4. Entitlement to service connection for deviated septum. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to October 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for the claimed disabilities. In an April 2014 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge; however, in February 2015, he withdrew his hearing request. See 38 C.F.R. § 20.704(d). The issue of entitlement to service connection for dysfunctional Eustachian tubes has been raised by the record in a September 2012 statement, but has not been adjudicated by the Agency of Original Jurisdiction (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) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Review of the record indicates that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Veteran contends that he began experiencing symptoms of GERD and sleep apnea during his service aboard the USS Henry L. Stimson, and that his symptoms have continued since then. He asserts that the hospital corpsman on board gave him "handfuls of Mylanta" when he complained about gastric pains, but did not document the complaints. The Veteran also asserts that he was teased by his shipmates for loud snoring, and that he woke up frequently and was always tired because he could not get a good night's sleep. See the September 2012 statement. In support of his assertions, the Veteran submitted a statement in April 2014 from retired Master Chief Petty Officer J.F., who served with the Veteran on the USS Henry L. Stimson. In February 2014, the Veteran was afforded a VA examination for GERD. The examiner noted that the Veteran had been diagnosed with GERD in 2013 and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for his opinion, the examiner noted that the symptoms the Veteran experienced in service, including a Mallory-Weiss tear, usually resolved in 2-3 days without long term complications, and that the Veteran was not treated again for GERD symptoms until approximately 2000. A VA medical opinion on the Veteran's sleep apnea was also obtained in February 2014. A VA examiner reviewed the Veteran's claims file and opined that it was less likely than not that the sleep apnea's inception occurred in service based on the lack of reported symptoms and evidence of chronicity in the 25-year period between 1986 (when the Veteran was noted in service to have possible sleep apnea) and 2010 (when the Veteran was diagnosed with mild obstructive sleep apnea). The examiner also indicated that "one must consider the presence of enlarged upper respiratory structures of hyperplastic lymphoid tissue and deviated septum" that were present in service. The Board finds these medical nexus opinions to be insufficient for adjudication purposes. Neither opinion contains adequate discussion of evidence or rationale to explain the examiners' conclusions. Specifically, the examiners did not discuss the Veteran's contentions that the GERD and sleep apnea continued since the in-service symptoms, nor did they discuss the statement by J.F. regarding the Veteran's snoring and the hospital corpsman's medical record-keeping on the ship. The mere fact that medical records do not establish chronicity is not, in and of itself, a sufficient basis on which to rest a medical conclusion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). As such, the Board finds that finds that VA medical opinion addendums are necessary. With regard to the claims for service connection for sinusitis and deviated septum, the Veteran indicated in a September 2012 statement that these claims should have been submitted as a claim for service connection for dysfunctional Eustachian tubes. He noted that he could file a separate claim for dysfunctional Eustachian tubes, or amend the two claims for sinusitis and deviated septum. The RO has not yet developed or adjudicated the matter of entitlement to service connection for dysfunctional Eustachian tubes. The claims for service connection for sinusitis and deviated septum are inextricably intertwined with the issue of service connection for dysfunctional Eustachian tubes. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issue of entitlement to service connection for dysfunctional Eustachian tubes, to include sending the Veteran appropriate VCAA notice, obtaining any outstanding records pertinent to the claims, and/or scheduling the Veteran for an appropriate VA examination. 2. Ask the Veteran to clarify his intention regarding the appeals of service connection for sinusitis and deviated septum; advise him that if he wishes to withdraw the appeals, he must expressly do so in writing. Afford him opportunity to respond. 3. Contact the VA examiner who provided the February 2014 medical opinions on the etiology of the Veteran's GERD (or if they are no longer available, suitable replacements) and ask the examiner to review the record and prepare addendums to their medical opinions. The examiner should provide opinions as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current diagnoses of GERD had causal origins in active service. The examiner must discuss the Veteran's contentions that he has experienced symptoms of GERD since service, for which he did not seek treatment until after years after discharge from service. The examiners should also specifically discuss the statement by retired Master Chief Petty Officer J.F. concerning record keeping on the ship. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the RO/AMC should schedule the Veteran for appropriate examination(s). 4. Contact the VA examiner who provided the February 2014 medical opinion on the etiology of the Veteran's sleep apnea (or if they are no longer available, suitable replacements) and ask the examiner to review the record and prepare addendums to their medical opinions. The examiner should provide opinions as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current diagnosis of sleep apnea had causal origins in active service The examiner must discuss the Veteran's contentions that he has experienced symptoms of sleep apnea since service, for which he did not seek treatment until after years after discharge from service. The examiner should also specifically discuss the statement by retired Master Chief Petty Officer J.F. concerning the Veteran's snoring in service. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the RO/AMC should schedule the Veteran for appropriate examination(s). 5. After completing all indicated development, and any additional development deemed necessary, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).