Citation Nr: 18147567 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-08 574 DATE: November 5, 2018 ORDER Service connection for sleep apnea is granted. REMANDED Service connection for a right heel disability is remanded. Service connection for bilateral hearing loss is remanded. Service connection for an ulcer is remanded. Service connection for irritable bowel syndrome is remanded. Service connection for gastroesophageal reflux disease (GERD)/hiatal hernia is remanded. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran’s current sleep apnea was manifested during his period of active service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1991 to March 1995. In April 2016, the Veteran claimed entitlement to a neck disability and acid reflux due to 38 U.S.C. § 1151. This is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. At the June 2018 hearing before the undersigned, the Veteran expressed his desire to withdraw his PTSD claim. However, recent caselaw requires that, for a withdrawal at hearing (as opposed to in writing) to be valid, the record must ensure that the Veteran fully understands the consequences of withdrawing the claim. As this was not clearly accomplished here, the matter remains on appeal; the Veteran is free to withdraw this claim in writing is he so chooses. Service connection The Veteran claims entitlement to service connection for sleep apnea, which he asserts began during active service. 10/30/2018 Hearing Transcript at 17-18. A February 2015 lay statement from the Veteran’s spouse reflects that the Veteran has been suffering from sleep apnea symptoms for many years. 03/13/2015 Buddy/Lay Statement. A July 2018 evaluation reflects a diagnosis of obstructive sleep apnea. 08/29/2018 VA Examination. In August 2018, the examiner, a Sleep Medicine Specialist, opined that sleep apnea began during active service. The examiner stated that his sleep apnea symptoms were present years before his sleep apnea diagnosis. The examiner stated that the Veteran had no sleep complaints and did not snore prior to service. He was told others that he had begun to snore disruptively during sleep and he was observed to stop breathing during sleep. He thought that his poor sleep quality and his fatigue were due to his duty schedule. Given the specific characteristics of the Veteran’s sleep apnea and given his sleep and medical history, the examiner stated that is more likely than not that his sleep apnea began during active service. The Board has given consideration to the Veteran’s lay assertions, the medical evidence, and opinion detailed above. The Board finds the Veteran’s assertions of symptomatology to be both competent and credible. The Board has given consideration to the positive etiological opinion, from a highly competent source, and finds the evidence to be at least in equipoise as to whether the Veteran’s sleep apnea is due to service. Thus, the Board finds that service connection is warranted for sleep apnea. REASONS FOR REMAND Right heel The Veteran asserts that he suffered from heel spurs during service and has a right heel disability due to intense activity during service. 10/30/2018 Hearing Transcript at 19. The Veteran should be afforded a VA examination to assess the nature and etiology of his claimed right heel disability. Bilateral hearing loss A January 2014 VA examination reflects normal hearing. A July 2018 audiological examination reflects mild sloping to moderate sensorineural hearing loss; however, audiometric findings were not detailed. An August 2018 audiological examination reflects sensorineural hearing loss and hearing aids were issued. Based on such objective diagnosis, the Veteran should be afforded another VA examination to assess the nature and etiology of his claimed hearing loss. On Remand, the Veteran should be requested to submit or complete a release regarding the specific audiometric testing with puretone thresholds stemming from the July 2018 evaluation. Ulcer, GERD, hiatal hernia Initially, the Board has referred the ulcer claim per § 1151 for initial adjudication. Otherwise, the Veteran asserts that he has a stomach ulcer and/or hiatal hernia/GERD due to medication taken for his service-connected multi-level degenerative disc disease with mild herniation at L5-S1. 10/30/2018 Hearing Transcript at 12. An opinion should be sought.   IBS The Veteran claims entitlement to service connection for irritable bowel syndrome. He contends that his irritable bowel syndrome is due to an undiagnosed illness; that his claimed disability is part of a constellation of symptoms as due to an illness as described under 38 C.F.R. § 3.317. A February 2014 VA examination reflects a diagnosis of irritable bowel syndrome, which the examiner indicated began in 2010. The examiner diagnosed irritable bowel syndrome based on his history of chronic diarrhea and negative workup including an unremarkable colonoscopy with biopsy. This is a diagnosable, but a medically unexplained chronic multisymptom illness of unknown etiology. A November 2014 VA examination reflects that there is insufficient evidence to warrant a diagnosis of IBS, and the Veteran’s disability pattern is less likely than not related to exposures in Southwest Asia, as there is insufficient evidence that he has not been diagnosed with IBS. Due to the conflicting opinions hereinabove, a clarifying examination and opinion should be sought. Acquired psychiatric disability The Veteran asserts that he has an acquired psychiatric disability due to in-service incident, to include beatings and treatment by fellow soldiers. 10/30/2018 Hearing Transcript at 4-8. A March 2014 VA examination reflects a diagnosis of “other stress-related disorder” and the examiner fund that the Veteran did not meet the DSM-IV/V criteria for PTSD. It is not clear whether a chronic acquired psychiatric disability is present. Moreover, the examiner did not provide an etiological opinion. The July 2018 sleep apnea examiner suggested that the Veteran has an acquired psychiatric disability due to his sleep apnea. 08/29/2018 VA Examination at 3. The Veteran should be afforded a VA examination to assess the nature and etiology of his claimed acquired psychiatric disability. The matters are REMANDED for the following actions: 1. Associate with the claims folder updated VA treatment records for the period from October 10, 2015. 2. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed right heel disability. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: Whether the Veteran currently has a right heel disability that is at least as likely as not (i.e., a likelihood of 50 percent or more) due to the Veteran’s active service. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. Schedule the Veteran for a VA examination to assess the nature and etiology of his claimed bilateral hearing loss. The claims folder should be made available to the examiner for review in conjunction with the examination. The examiner should state whether the Veteran has hearing loss per §§ 3.385, 4.85 and offer an opinion as to whether any hearing loss at least as likely as not (a 50 percent or higher degree of probability) had its onset during any period of active service or is otherwise related to the Veteran’s period of active service, including conceded noise exposure. The examiner must provide reasons for all opinions offered. The examiner is advised that the Veteran is competent to report his symptoms and history; and that his reports must be considered in formulating the requested opinions. 4. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed ulcer/GERD. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: (a) Clarify whether the Veteran has had GERD or a stomach ulcer or hiatal hernia at any time during the appeal period (from January 2013 to present); (b) Whether the Veteran has GERD or an ulcer or hiatal hernia that is proximately due to or aggravated by his service-connected lumbar spine disability or medication taken to treat it. If aggravation is found, identify the baseline level of disability prior to such aggravation. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 5. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed irritable bowel syndrome. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: a) Does the Veteran have any pertinent signs and symptoms of irritable bowel syndrome, and, if applicable, can any such signs and symptoms be attributed to a known clinical diagnosis? If not, is it at least as likely as not that any such signs and symptoms represent a medically unexplained chronic multi-symptom illness? b) If the Veteran’s gastrointestinal symptoms are not found to be an undiagnosed illness ot medically unexplained chronic multi-symptom illness, then is it at least as likely as not that a disability manifested by irritable bowel syndrome manifested during active service or is otherwise due to active service? Consideration should be given to the February and November 2014 VA examinations of record. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 6. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed acquired psychiatric disability. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: (a) Clarify whether the Veteran has an acquired psychiatric disability; (b) Whether the Veteran currently has an acquired psychiatric disability that is at least as likely as not (i.e., a likelihood of 50 percent or more) due to active service. (c) Whether the Veteran has an acquired psychiatric disability that is proximately due to or aggravated by service-connected sleep apnea. (d) If PTSD remains on appeal and is diagnosed, please state whether such is due to an in-service stressor, and identify such stressor. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel