Citation Nr: 18149410 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 17-40 930 DATE: November 9, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) due to Gulf war illness is denied. FINDINGS OF FACT 1. The Veteran’s OSA is neither proximately due to nor aggravated beyond its natural progression by his service-connected PTSD, and is not otherwise related to an in-service injury, event, or disease. 2. The Veteran’s GERD did not have its onset in active service and is not otherwise the result of a disease or injury, if any, incurred in active service, and it is not due to an undiagnosed illness related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 2. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to March 1998. He served in Southwest Asia from February 4 to March 25, 1991 and from May 10 to June 10, 1991. Service Connection To obtain service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, i.e., a “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Entitlement to service connection for OSA The Veteran contends that his OSA is the result of his service-connected PTSD. Service treatment records do not show any complaints, diagnosis, or treatment of OSA during active duty. VA treatment records indicate treatment for OSA but no discussion on its etiology. An October 2016 medical treatment record from Sanford Pulmonary indicates a diagnosis of OSA but no discussion on its etiology. The Veteran submitted a letter dated February 2017 from Dr. H.J. Md. where he opined that “it is in my opinion that it is as likely as not [the Veteran’s] sleep apnea is aggravated by his PTSD, anxiety, vigilance, and lack of sleep, and anxiety triggered by the mask.” In addition, the Veteran summitted a medical article titled “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort.” In March 2017, the Veteran attended a VA Sleep Apnea Disability Benefits Questionnaire (DBQ) examination. The examiner diagnosed OSA and opined it was less likely than not proximately due to or the result of the Veteran’s service connected condition. The rationale provided was: The important risk factors for OSA are advancing age, male gender, obesity (In both males and females, the strongest risk factor for OSA is obesity.), and craniofacial or upper airway soft tissue abnormalities. Additional risk factors identified in some studies include smoking, nasal congestion, menopause, and family history. Rates of OSA are also increased in association with certain medical conditions, such as pregnancy, end-stage renal disease, congestive heart failure, chronic lung disease, stroke. [Overview of obstructive sleep apnea in adults. Kingman P Strohl, MD 02/2017. ] Regarding the recent study linking PTSD and sleep apnea written in Med Page Today, (Phend, Crystal (2010). Chest: Apnea Elevated in Vets with PTSD), the study is still preliminary and states; "Orr's group cautioned that they were unable to determine how many ... had OSA before deploying--but researchers assume that it was largely preexistent." Obstructive sleep apnea is a disease with a clear etiology and diagnosis. Thus is it is less likely than not that the Veteran's obstructive sleep apnea was proximately due to or the result of PTSD, environmental exposure or proximately due to or the result of an injury, event or condition incurred while in the military. It is less likely than not, less than a 50% probability that the Veteran's OSA was caused by his service connected PTSD. Based on the foregoing evidence of record, the Board finds that service connection is not warranted on a direct or secondary basis. In this regard, the Board finds that the March 2017 opinion to be highly probative, as it reflects review of all the Veteran’s medical records, to include his service treatment records and private treatment records whereas there is no indication that the February 2017 opinion reflected a review of all the Veteran’s medical records. In sum, the evidence deemed most probative by the Board, specifically the March 2017 opinion, demonstrates that the Veteran’s OSA did not manifest in service, or indeed for many years thereafter and was not caused by or otherwise related to the service-connected PTSD. The examiner provided a rationale for the opinion proffered and is consistent with the evidence of record. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for GERD due to Gulf war illness Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (West 2014); 38 C.F.R. § 3.317 (a)(1) (2016). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117 (d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 (2014); 38 C.F.R. § 3.117 (2016), unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes joint pain as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. A “medically unexplained chronic multi symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 C.F.R. § 3.317 (a)(2)(ii). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317 (a)(2)(C). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. See 38 C.F.R. § 3.317 (b). For purposes of section 38 C.F.R. § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. See 38 C.F.R. § 3.317 (a)(4). The Veteran contends that he has had chronic GERD issues since his active service and that is likely related to his service in Operation Desert Storm/Desert Shield to include as secondary to Gulf War illness. Service treatment records do not show any complaints, diagnosis, or treatment of GERD during active duty. VA Treatment records indicate treatment for GERD as early as 2015 but with no discussion on its etiology. In September 2016, the Veteran attended a VA Esophageal Conditions DBQ examination. The examiner diagnosed GERD and opined that it was less likely than not that it was incurred in or caused by a claimed in-service injury, event or illness. The rationale stated was: After review of the available medical evidence, the Veteran's reported history, and clinical findings on this C&P examination, NO disability pattern respective to GULF-WAR service is found. Where indicated in the DBQs, the Veteran's CLAIMED COMPLAINT/CONTENTION of GERD is reflected as a specific diagnosed condition, or not consistent w/ clinical findings, or resolved and NOT specific to service in Southwest Asia. The Veteran's STR shows evidence of treatment for GERD since 2008. However, it would be mere speculation to state that this condition was caused by exposures while the veteran served in Persian Gulf in 1990-1991. I, therefore, opine that the claimed GW disability pattern was LESS likely than not (LESS than 50 percent probability) related to a specific exposure event experienced by the Veteran during service in Southwest Asia. Based on the foregoing evidence of record, the Board finds that service connection is not warranted on a direct basis or as due to a Gulf War related illness. In this regard, the Board finds that the March 2017 opinion to be highly probative, as it reflects review of all the Veteran’s medical records, to include his service treatment records and private treatment records. The Veteran has had ample opportunity to obtain and submit a medical opinion in favor of his claim, and against the reasoned conclusions of the March 2017 examiner, but he has not done so. In sum, the evidence deemed most probative by the Board, specifically the March 2017 opinion, demonstrates that the Veteran’s GERD did not manifest in service, or indeed for many years thereafter and was not caused by a Gulf War related illness. The examiner provided a rationale for the opinion proffered and is consistent with the evidence of record. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel