Citation Nr: 1805987 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-13 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a sleep disorder, including sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with depression. 2. Entitlement to service connection for a stomach disorder, to include gastrointestinal reflux disease (GERD) and ulcer. REPRESENTATION Veteran represented by: Tennessee Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Army from October 1997 to December 2001 and from December 2003 to April 2005, to include service in Kuwait and Iraq. He has additional time served in a reserve unit. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Board previously remanded these issues in July 2014, August 2015, and April 2017. In January 2013 the Veteran and his wife testified at a videoconference hearing with a Veterans Law Judge who is no longer with the Board. The Veteran was provided an opportunity to have another hearing but he did not respond to the inquiry. FINDINGS OF FACT 1. The probative, competent evidence is against a finding that the Veteran's sleep disorder is related to active duty service or to another service-connected disability. 2. The probative, competent evidence is against a finding that the Veteran's stomach disorder is related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for a stomach disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disability becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has claimed entitlement to service connection for a sleep disorder and a stomach disorder. Each disability will be discussed separately. Sleep disorder The Veteran essentially contends that he developed sleep difficulties with excessive snoring during his active service, resulting in his current sleep disability. He testified at the Board hearing that his roommate noticed loud snoring in 2008, and that after sleeping he would wake with a headache and still be tired. The Veteran noted that he was first diagnosed with sleep apnea after a sleep study in 2010. His wife testified that he would stop breathing in his sleep and would snore loudly. The Veteran has also asserted that his sleep disorder is caused or aggravated by his service-connected PTSD with depression. Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with sleep apnea after a sleep study in 2010. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service or a service-connected disability. Service treatment records show no evidence of symptoms or treatment for sleep apnea. The Veteran testified that he was diagnosed with sleep apnea in 2010, several years after separation from service. While the Veteran's fellow service members submitted written statements indicating that the Veteran snored loudly and would stop breathing during sleep, the Veteran did not report having any sleep difficulties at separation from service. In his post-deployment health assessment the Veteran specifically responded "no" to the question of whether he was still feeling tired after sleeping or difficulty breathing. The first treatment for a sleep disorder following service was in 2010, when the Veteran underwent a sleep study at VA. The Board notes that the Veteran sought treatment at VA for various ailments beginning in 2006, but he did not report having any sleep difficulties until 2010. The Veteran testified that the delay was because he did not know that he had a problem. As there is no competent evidence of a sleep disorder in service, competent evidence linking the current condition with service is required to establish service connection. In this case the sum of the evidence is negative to the Veteran's claim. In January 2015 the Veteran first underwent VA examination in connection with his claim. At the time the VA examiner noted that the Veteran had a diagnosis of sleep apnea and that he had been using a CPAP machine since his 2010 diagnosis. At the conclusion of the examination the VA examiner stated that it was impossible to say without resorting to speculation as to when the Veteran developed sleep apnea. He noted that the service treatment records did not document sleep apnea, and while the other service members noted the Veteran's snoring during service, the Veteran's post-deployment health assessment form suggested that he did not have any symptoms. The VA examiner concluded that sleep apnea was a disease with a clear and specific etiology and diagnosis, and therefore it was less likely than not related to a specific exposure event as opposed to an undiagnosed illness; he also noted that sleep apnea was a common disorder in the general population and could be related to structural and neurological factors. The VA examiner reiterated that sleep apnea was common and could be related to structural and neurological factors, but that the weight of current literature did not provide evidence for a causal link between PTSD and the causation or aggravation beyond natural progression of sleep apnea. In November 2015 the Veteran's file was reviewed by a VA examiner pursuant to the Board's August 2015 remand directive. After a review of the file the VA examiner noted that the Veteran had not mentioned sleep problems on his post-deployment health assessment or during any of his evaluations at VA prior to 2010. The VA examiner also reasoned that the Veteran had gained approximately 15 pounds between 2001 and 2005, and that weight gain was associated with sleep apnea. The VA examiner concluded that given the lack of corroborating evidence of the buddy statement and hearing testimony combined with the Veteran's objective weight gain it was overall less likely than not that the Veteran's sleep apnea began or was etiologically related to military service. In July 2017 the Veteran's file was again reviewed pursuant to the Board's April 2017 remand directive. The VA examiner noted that the Veteran did not complain of sleep difficulties until 2010, several years after separation and that during this time he gained weight, which was a risk factor for developing sleep apnea. The VA examiner noted that while there were written statements documenting the Veteran's snoring, that alone was not indicative of sleep apnea, and that difficulty breathing could be attributed to other conditions like post-nasal drip. The VA examiner indicated that the lay statements and hearing testimony suggested a sleep apnea disability, but that it was mere speculation as to its onset. Overall, the Board finds that the most probative evidence is against a nexus finding. Although the Veteran asserted that he began having sleep difficulties in service and this was also noted by fellow service members, the Veteran did not report having trouble sleeping during service or in his post-deployment health assessment. Moreover, he did not report having difficulty sleeping until 2010, despite reporting sleep difficulties related to his mental impairment prior to 2010. The objective evidence suggests that the Veteran gained weight, which may have led to his sleep apnea symptoms. At best, the VA examiners have stated that a nexus opinion would be speculative, and otherwise the opinions have been negative. The Board affords great weight to these VA opinions when viewed together because they are based on a review of the Veteran's claims file and provide references to service treatment records and medical findings in the rationale. The Board notes that while only one of the opinions provides a negative nexus for secondary service connection, the Veteran provided no other evidence or contentions to support a secondary service connection claim. Therefore the evidence is against a finding that the Veteran's service-connected PTSD caused or aggravated his sleep apnea. While the Veteran believes that his current sleep apnea is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a sleep disability are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his sleep disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current sleep disability is not competent medical evidence. The Board finds the opinion of the VA examiners to be significantly more probative than the Veteran's lay assertions. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However as a preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable and service connection must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. Stomach disorder The Veteran essentially contends that he developed digestion problems during his active service, resulting in his current stomach disability. He asserted that his digestion problems began during his first tour of duty and that he was unable to eat certain foods or drink certain sodas or beverages without regurgitating. The Veteran asserted that he was diagnosed with GERD in 2007 when he sought treatment after not being able to keep food down properly. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with GERD. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. Service treatment records show no evidence that the Veteran sought treatment for digestion problems during service. The only treatment record was from August 1999 when the Veteran reported vomiting and loose bowels after eating seafood in 1994. During the post-deployment health assessment in 2005, the Veteran responded "no" when he was asked if he had any vomiting, indigestion, or diarrhea during deployment. The first treatment for a gastrointestinal disability following service was in 2008, when the Veteran reported that he was having positive GERD symptoms daily and that he was taking over-the-counter medication. At that time he was diagnosed with GERD and was prescribed medication. As there is no competent evidence of a gastrointestinal disability in service, competent evidence linking the current condition with service is required to establish service connection. In January 2015 the Veteran first underwent VA examination in connection with his claim. At the time the VA examiner noted the Veteran's diagnosis of GERD in early 2008. The Veteran asserted that he was using over-the-counter medication for his symptoms and that he did not require special care. During the physical examination the VA examiner noted that the Veteran had pyrosis consistent with GERD, but that there was no evidence of esophageal stricture or spasm of the esophagus. After the physical examination the VA examiner opined that it was less likely than not that the Veteran's GERD was caused by an in-service event, injury, or illness. In making this determination the VA examiner observed that the Veteran had a few acute gastroenteritis episodes after consuming specific food, but that there was no diagnosis of GERD during service or until 2008. The VA examiner also noted that there was a buddy statement that said the Veteran had heartburn at a wedding in 2002, but that he had other risk factors for heartburn, to include weight gain. The VA examiner opined that it was speculative as to when the Veteran's GERD began but that it was not diagnosed in service; he also noted that GERD had a specific etiology and would not be an undiagnosed illness from serving in Southwest Asia. He concluded that the current literature was against a causal link between specific environmental hazards/toxin exposure and GERD. In December 2015 the Veteran's file was reviewed by a VA examiner in connection with his claim, pursuant to the Board's August 2015 remand directive. After reviewing the file the VA examiner observed that the Veteran had episodes of acute gastroenteritis during active duty service, which manifested as acute nausea, vomiting, and diarrhea. The examiner differentiated between gastroenteritis and GERD, noting they affected different parts of the gastrointestinal track. The VA examiner acknowledged the buddy statement describing heartburn in 2002, but noted that the Veteran did not complain of any gastrointestinal symptoms when he entered his second tour in 2003. Lastly, the VA examiner noted that the Veteran specifically replied "no" during his post-deployment health assessment as to whether he had digestion problems. The VA examiner observed that the Veteran had said he was rushed through the post-deployment health assessment, but that the Veteran had replied "yes" to some of the questions pertaining to stress. Moreover, the VA examiner noted that the first diagnosis of GERD was in 2008, several years after separation. The VA examiner concluded that the lack of corroboration for the buddy statement and hearing testimony as well as the lack of pathophysiologic evidence between GERD and gastroenteritis suggested that it was less likely than not that the Veteran's GERD was related to active duty service. In July 2017 the Veteran's file was again reviewed by a VA examiner pursuant to the Board's April 2017 remand directive. At the time the VA examiner acknowledged the service treatment records showing digestion issues and the buddy statement describing GERD in 2002. She opined that the symptoms the Veteran experienced in service were not GERD, but rather acute gastroenteritis, and that since the Veteran responded "no" to the post-deployment health assessment in 2005, she could not find that GERD began in service. As it pertained to the buddy statement, the VA examiner noted that the statement did not describe the Veteran's symptoms or list their duration or onset. Lastly the VA examiner noted that there was some inconsistency as to when the Veteran began having symptoms; his written statement indicated that his symptoms began when he was in Iraq, but his hearing testimony noted that they began when he was in Bosnia. She concluded that she could not determine the onset of GERD without resorting to speculation. After reviewing all of the evidence, the Board affords great weight to the VA examiners' opinions, when viewed together. These opinions are based on a review of the claims file, and in one instance, a physical examination of the Veteran. All of the VA examiners provided alternate etiologies for the GERD symptoms, and referenced the service treatment notes in differentiating between his current symptoms and those in active duty. The Board notes that the objective evidence is against a nexus finding. The Veteran denied having symptoms of digestion problems at his post-deployment health assessment, and even if he was rushed through the process as he claims, there was still no treatment or diagnosis until 2008, three years after separation. Moreover, while the Veteran may have had some digestion difficulties as a result of certain foods and was observed to have heartburn in 2002, this was not noted at entrance to his second tour of duty. Lastly, the VA examiners referred to alternate causes for GERD, to include weight gain. Overall, the Board finds that the evidence is insufficient to support a nexus finding for service connection. While the Veteran believes that his current gastrointestinal disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of a gastrointestinal disability are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his GERD is not competent medical evidence. The Board finds the opinions of the VA examiners to be significantly more probative than the Veteran's lay assertions. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not for application and service connection must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for a sleep disorder, including sleep apnea, to include as secondary to service-connected PTSD with depression, is denied. Entitlement to service connection for a stomach disorder, to include GERD and ulcer, is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs