Citation Nr: 18142229 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-03 525 DATE: October 15, 2018 ORDER Entitlement to service connection for chronic constipation is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's chronic constipation began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for chronic constipation have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2005 to August 2007. 1. Chronic Constipation The Veteran asserts that he is entitled to service connection for chronic constipation, which he contends is secondary to his already service-connected residuals of a right inguinal hernia repair. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by, his service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of chronic constipation, the preponderance of the evidence is against finding that the Veteran’s disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran was afforded a VA examination in September 2012. The examiner opined that the Veteran had a diagnosis of chronic constipation, but provided no etiological opinion. The examination is therefore inadequate. A February 2013 VA examiner gave a diagnosis of chronic constipation, but opined that it was less likely than not related to the Veteran’s service-connected conditions. The examiner noted that the only notation of a complaint of constipation in Veteran’s medical record, aside from his September 2012 VA examination, was in August 2009, at which time he was taking Percocet. The examiner further reported that there were numerous other notes from 2007 to the time of the examination where constipation was specifically denied or not mentioned. Furthermore, the examiner found no other mention of the use of stool softeners other than during the prior VA examination. As the Veteran's representative pointed out in an August 2018 statement, the February 2013 examiner expressed a suspicion the Veteran’s chronic constipation was due to the narcotics he had been prescribed for chronic pain; however, the examiner also explained that there was no supporting medical evidence for that opinion. Therefore, since the examiner has already reported that there was no support in the medical evidence for the suspicion, the Board finds a remand to develop the theory is unnecessary. A January 2015 addendum VA examiner also reported a diagnosis of chronic constipation. The Veteran reported that the condition existed prior to his inguinal hernia repair and had not worsened due to his chronic right groin pain. The examiner opined that the Veteran’s condition was less likely than not due to or the result of his other service-connected conditions, explaining that the Veteran himself had reported his condition had not worsened since his inguinal repair. Next, the examiner reported that the available medical evidence was not sufficient to determine a baseline level of severity. Nevertheless, the examiner opined that the Veteran’s condition had not been aggravated by a service-connected disability, again explaining that the Veteran himself had reported his condition was not aggravated by his inguinal repair complications. While the Veteran believes his chronic constipation is proximately due to or the result of, or was aggravated beyond its natural progression by, his service-connected residuals of a right inguinal hernia repair, he has not been shown competent to provide a diagnosis or determine that his disability was caused or aggravated by the residuals of his right inguinal hernia repair. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service connection may also be granted on a direct basis; however, the Veteran has not asserted direct service connection and has not provided any evidence in support of direct service connection. Nor does the record otherwise demonstrate that his chronic constipation is directly related to service. The Veteran’s service treatment records are silent for complaints, treatment or diagnosis of any chronic constipation. The Veteran first reported constipation in a June 2009 VA treatment record, and the first indication of a diagnosis was during the September 2012 VA examination. Further, the record contains no medical evidence establishing a medical nexus between the Veteran’s chronic constipation and his active duty service. Thus, the preponderance of the evidence is also against finding that the Veteran’s chronic constipation is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). REASONS FOR REMAND 1. Sleep Apnea The September 2012 VA examiner reported that the Veteran did not have a diagnosis of obstructive sleep apnea, stating that there was no objective evidence of obstructive sleep apnea during a January 2011 sleep study. However, the examiner did not address an April 2012 private treatment record that included a diagnosis of active obstructive sleep apnea. The examination is therefore inadequate. Further, more recent VA treatment records indicate the Veteran has a diagnosis of obstructive sleep apnea. See March 2014 VA treatment record. And the Veteran submitted a September 2013 buddy statement from J.R. asserting the Veteran had a snoring problem, and other associated breathing difficulties while in service. As such, remand is necessary to obtain an additional VA examination. The matter is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers and associate them with the claims file. 2. Obtain an addendum opinion from an appropriate clinician as to whether any diagnosed obstructive sleep apnea is at least as likely as not related to the Veteran’s active duty service. If, and only if, determined necessary by the reviewing clinician, the Veteran should be scheduled for another VA examination. The reviewing clinician must review and discuss: an April 2014 private treatment record showing a diagnosis of obstructive sleep apnea; a July 2013 buddy statement from J.R.; and a March 2013 VA treatment record showing a diagnosis of obstructive sleep apnea. 3. Then readjudicate the claim. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel