Citation Nr: 18150725 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-20 990 DATE: November 15, 2018 ORDER Entitlement to service connection for obstructive sleep apnea to include as secondary to medication for the Veteran’s service connected disabilities is denied. Entitlement to a separate grant of service connection for functional dyspepsia is denied. REMANDED The Veteran’s claim for service connection for tension headaches to include as secondary to his service connected post-traumatic stress disorder (PTSD) is remanded. The Veteran’s claim for service connection for hypertension to include as secondary to his service connected PTSD is remanded. FINDINGS OF FACT 1. The service treatment records are negative for evidence of sleep apnea, and this disability was first diagnosed many years after discharge from service. 2. No opinion asserts that the Veteran’s sleep apnea was incurred in or due to active service; the preponderance of the competent medical evidence finds that it is less likely than not that this disability was incurred due to or aggravated by his service connected disabilities. 3. The Veteran does not have a current diagnosis of functional dyspepsia, manifested by symptoms not already compensated for under the service-connected GERD; nor does he have an undiagnosed or multi-symptom illness manifested by functional dyspepsia; his gastrointestinal disabilities are due to known diagnoses for which service connection has been established. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea to include as secondary to his service connected disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection for a separate gastrointestinal disability manifested by functional dyspepsia have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran contends that he has developed several disabilities due to active military service, to include his deployment to Iraq. He believes that his sleep apnea is the result of medications prescribed for various service connected disabilities. He also contends that he has a disability manifested by functional dyspepsia, and believes that this might be an undiagnosed disability resulting from various environmental exposures during his deployment. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither sleep apnea nor functional dyspepsia is listed. Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). To establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In relevant part, 38 U.S.C. 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Obstructive Sleep Apnea The Veteran’s service treatment records are negative for a diagnosis of sleep apnea. They are also negative for evidence of sleep related symptoms or complaints. The Veteran answered “no” to a history of frequent trouble sleeping on a March 2003 Report of Medical History completed prior to deployment and on a January 2005 Post-Deployment Health Assessment completed just prior to discharge. A private examination conducted in March 2005 was negative for sleep apnea. Post service records include a March 2008 Report of Medical Examination for the National Guard that was negative for sleep apnea. The Veteran denied having a history of frequent trouble sleeping on a Report of Medical History in March 2008. A March 2012 Persian Gulf Registry Examination was negative for sleep apnea. A September 2014 Gulf War General Medical Examination was also negative for sleep apnea. Private medical records include the report of a Home Sleep Test conducted over three nights in March 2017. The results suggested the presence of mild obstructive respirations during sleep. The Veteran also submitted an article by a medical doctor regarding how prescription medications may affect the risk of sleep apnea in May 2017. This noted that certain prescriptions medications such as benzodiazepines, opiates, opioids, and barbiturates could have impacts on sleep architecture, muscle tone, and breathing. The Veteran was provided a VA examination of his sleep apnea in July 2017. The claims file was reviewed by the examiner. The Veteran reported that his condition began sometime between 2007 and 2017. He reported snoring, grinding his teeth, a lack of energy and feeling sleepy during the day. The private sleep study and diagnosis was noted. After the examination and record review, the examiner opined that the Veteran had a diagnosis of obstructive sleep apnea. In a separate report, the examiner opined that he was unable to determine a baseline level of severity of the Veteran’s sleep apnea prior to aggravation. The rationale was that the Veteran’s diagnosis was mild obstructive respirations during sleep. The examiner noted that obstructive sleep apnea was caused by obstruction of the respiratory pathway, and added that PTSD medications cause central sleep apnea and not obstructive sleep apnea. In a December 2017 addendum, the examiner opined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of the Veteran’s service connected conditions. The rationale was that the Veteran has a diagnosis of obstructive sleep apnea, which is caused by obstruction in the upper air way. He said that medications do not cause this obstruction. He acknowledged that certain mental medications can cause central sleep apnea, but not obstructive sleep apnea, which is a mechanical sleep apnea. A second December 2017 addendum continued to find that a baseline level of severity prior to aggravation could not be determined, and that the Veteran’s sleep apnea had not been aggravated beyond its natural progression by his medications. The rationale continued to be that medications do not cause obstructive sleep apnea. Based on the above, the Board finds that entitlement to service connection for obstructive sleep apnea is not established. Initially, the Board observes that the Veteran does not contend that his sleep apnea began during service, but rather that it was caused or aggravated after service by the medications used to treat his service connected disabilities. The record shows that there is no evidence of a diagnosis, treatment, or complaints pertaining to sleep apnea or any other sleep related disability during active service or until many years after discharge from service. Furthermore, there is no evidence of a competent medical opinion that relates the Veteran’s sleep apnea to active service. The Board concludes that entitlement to service connection for sleep apnea on a direct basis is not supported. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). However, the Veteran’s contends that his sleep apnea was either incurred or aggravated by the medication used to treat his service connected disabilities. He has submitted a medical text in support of this assertion. In contrast, a VA physician examined the Veteran and the medical record, after which he opined that it was less likely than not that the Veteran’s sleep apnea was proximately due to the medications used to treat his service connected disabilities, and that it was less likely than not the sleep apnea was aggravated by these medications. The rationale was the same in both cases, and was that while medications can cause certain types of sleep apnea, the obstructive sleep apnea with which the Veteran has been diagnosed is not one of those types. The Board finds that the VA opinion has more probative value than the medical text. The text addresses the matter in generalities, and while it finds that medications can cause sleep apnea, it does not assert that this always happens or address the specifics of the Veteran’s case. In contrast, the VA examiner examined the Veteran and his record, including the specific medications used by the Veteran. Afterwards, he opined that the Veteran’s particular type of sleep apnea was the result of obstruction of the airways, and therefore neither caused nor aggravated by his medications. As these opinions addressed the Veteran’s contentions, were based in part on a physical examination and record review, and used the records to contemplate the particular medications and dosages used by the Veteran, they are considered to be more accurate than the general assertions of the medical texts. The Board finds that it is less likely than not that the Veteran’s sleep apnea is the result of medications prescribed to treat his service connected disabilities, and service connection is not established. In reaching this decision, the Board recognizes that the Veteran sincerely believes his sleep apnea was incurred or aggravated by the medications used to treat his service connected disabilities. However, a layman would not normally be competent to provide an opinion regarding the etiology of obstructive sleep apnea, and there is no indication that the Veteran has had the medical training that would enable him to make such a diagnosis or to relate the current diagnosis to his medication. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The VA medical opinions remain the most probative evidence, and they find that there is no relationship between the Veteran’s medications and his obstructive sleep apnea. Functional Dyspepsia The record shows that the Veteran has initiated several claims relating to disabilities of the upper gastrointestinal system. The Veteran’s claim for service connection for functional dyspepsia was denied in a November 2014 rating decision, which is the decision currently on appeal to the Board. This decision also found that new and material evidence had not been submitted to reopen a claim for service connection for hiatal hernia, which the Veteran was now claiming as dysphagia. The Veteran submitted a notice of disagreement with both issues in May 2015, a Statement of the Case was issued in March 2016, and a Substantive Appeal was received in May 2016. Subsequently, entitlement to service connection for gastroesophageal reflux disease (GERD) was granted in an August 2017 rating decision. A March 2018 rating decision recharacterized the diagnosis of this grant to include the Veteran’s hiatal hernia and laryngopharyngeal reflux as part of this disability. The Veteran’s evaluation was increased, and this increase was said to be based on symptoms that include dysphagia, pyrosis, regurgitation, and substernal pain. The Board will consider this to be a complete grant of the benefits sought in relation to any claims for service connection for GERD, hiatal hernia and dysphagia. Moreover, the record suggests that the Veteran is satisfied with this outcome, as after the August 2017 grant, he submitted a request to withdraw the appeal for “Hiatal Hernia (Now Claimed as Dysphagia)” in September 2017. As the Board views these appeals as having been granted, no formal action is required pertaining to the request to withdraw. However, the Veteran’s claim for service connection for functional dyspepsia has been developed as a separate issue, and has been appealed and certified to the Board. The Veteran has not withdrawn this claim, and it must be adjudicated. The Veteran contends in part that he has functional dyspepsia as a result of exposure to unknown substances while serving in the Persian Gulf region. For Persian Gulf Veterans service connection is warranted pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 if a Veteran presents evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; 3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more during the presumptive period prescribed by the Secretary; and, (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a). Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317 (a)(1)(i) through December 31, 2021. See 77 Fed. Reg. 71382 (2016). 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. § 1117 (d) warrants a presumption of service-connection. The Veteran’s service treatment records do not include a diagnosis of functional dyspepsia, nor do they show treatment or complaints relating to functional dyspepsia. His periodic examinations were negative for this disability. On a January 2005 post-deployment health assessment, the Veteran answered “no” to a history of frequent indigestion. A March 2005 private annual examination reports that the Veteran was negative for abdominal pain and heartburn. Post service medical records include the Report of a March 2008 examination for the National Guard. The abdomen and viscera were normal, and there was no diagnosis of or complaints pertinent to functional dyspepsia. The Veteran answered “no” to having a history of frequent heartburn or indigestion on a Report of Medical History he completed at that time. The initial report of dyspepsia is found in a private treatment record dated November 2010. He was seen due to continued acid reflux. The assessments included dyspepsia, not otherwise specified. An upper GI series conducted at this time was normal. The Veteran presented for a Persian Gulf Registry Examination in March 2012. He complained of abdominal pain, but did not complain of nausea, vomiting, or reflux. The abdomen was soft, non-distended and non-tender on examination. The assessments included epigastric pain, inflamed esophagus on esophagogastroduodenoscopy-scopy (EGD) per the Veteran’s report. There was no mention or assessment of dyspepsia. The Veteran was afforded an Gulf War General Medical Examination in September 2014. He had a history of GERD and hiatal hernia. The examiner found that based on the conditions identified, there was no undiagnosed illness for which an etiology was established. He further opined that the Veteran did not have any signs or symptoms that may represent an undiagnosed illness or a diagnosed medically unexplained chronic multi-symptom illness. The Veteran had an additional Gulf War examination in March 2018. He did not have any additional signs or symptoms that were not addressed. At the conclusion, the examiner opined that the Veteran did not have functional dyspepsia. Instead, he had an EGD which showed hiatal hernia and GERD. The Board finds that entitlement to service connection for functional dyspepsia is not established. The first requirement for service connection is medical evidence of a current disability. There is no such evidence in this claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 (2012); see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). The only medical record that mentions dyspepsia is the November 2010 private medical record. The Veteran’s claim for service connection for this disability was not received until February 2014. The Veteran has been afforded many VA examinations since the receipt of his claim, and hundreds of pages of both VA and private medical records have been obtained. None of these include a current diagnosis of functional dyspepsia. The March 2018 VA examiner found that the Veteran does not have this disability, but instead has hiatal hernia and GERD. The Board observes service connection has already been established for these disabilities. As there is no competent medical evidence of a separate disability diagnosed as functional dyspepsia, entitlement to service connection may not be granted. The Board also finds that entitlement to service connection for functional dyspepsia as part of an undiagnosed or multi-symptom illness is not warranted. The VA examiners have found that the Veteran does not have an undiagnosed illness; a medically unexplained chronic multi-symptom illness; or a diagnosed illness for which service connection is presumed. In fact, the only disabilities identified by the March 2018 VA examiner are the service-connected hiatal hernia and GERD. The Board observes that this is a known diagnosis, and not an undiagnosed illness; a medically unexplained chronic multi-symptom illness; or a diagnosed illness for which service connection is presumed. It follows that service connection for functional dyspepsia may not be granted on this basis. 38 C.F.R. § 3.317. Notably, dyspepsia is essentially heartburn and indigestion resulting in a burning sensation in the chest and/or throat. This is the exact description of the Veteran’s symptoms noted on his May 2016 VA Form 9, and these symptoms have been contemplated by the disability rating assigned for the Veteran’s service-connected GERD. Accordingly, a separate grant of service connection for functional dyspepsia is not warranted as the symptoms associated with the claimed dyspepsia are already accounted for as part of the service-connected GERD. REASONS FOR REMAND Headaches The Veteran contends that he has developed chronic headaches due to active service. In the alternative, he contends that has tension headaches that are the result of his service connected PTSD. In his October 2017 notice of disagreement, the Veteran contends that he suffered with headaches during his one-year deployment to the Persian Gulf region. He notes he was exposed to many improvised explosive devices, and says he experienced headaches daily during his deployment. In the January 2018 VA Form 9, the Veteran reports that his headaches were a constant in Iraq. The Board observes the Veteran is competent to describe his headaches, and his statements are also credible. The Veteran was provided a VA examination for headaches in June 2017 which includes a current diagnosis of tension headaches. However, while opinions offered in June 2017, July 2017, and December 2017 addressed whether the Veteran’s headaches were incurred secondary to his service connected disabilities, none of these opinions addressed whether his headaches were incurred in or due to active service. These opinions are therefore incomplete, and, given the Veteran’s credible assertions, an addendum opinion pertaining to direct causation should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hypertension The Veteran contends that the high blood pressure readings that were noted during service represented the start of his hypertension, or that it was either incurred or aggravated secondary to his service connected PTSD. The Veteran was afforded a VA hypertension examination in June 2016. The claims file was reviewed by the examiner. There was a current diagnosis of hypertension, and he gives the date of diagnosis as 2004. The report adds that the Veteran described a history of high blood pressure since 2004. Unfortunately, on the opinion form, the examiner addressed several disabilities at once and checked both the “yes” and the “no” boxes regarding whether the Veteran’s disabilities were proximately due to or the result of the service connected PTSD. The rationale stated that there was not significant medical evidence to state that the Veteran’s claimed hypertension was at least as likely as not due to or the result of his PTSD. Similarly, there was not significant medical evidence to state that the Veteran’s claimed hypertension was at least as likely as not aggravated beyond its natural progression by PTSD. The Veteran was afforded another VA examination in March 2018. Unfortunately, the opinion that resulted from this examination only addressed direct causation, and did not attempt to clarify the June 2016 opinion regarding possible aggravation. The Board find that the June 2016 examination report and opinion is incomplete. First, it states that the Veteran had a current diagnosis of hypertension that was diagnosed in 2004. This would be during the Veteran’s second period of service. However, the service treatment records are negative for a diagnosis of hypertension, this examiner did not provide an opinion as to whether hypertension was incurred during or due to active service, and he provides no further explanation for dating the diagnosis from 2004. The report suggests that this was based entirely on the Veteran’s own reports of high blood pressure dating from 2004. As the March 2018 VA examination addressed these deficiencies and includes a new opinion, no further opinion regarding direct service connection is required. However, as both boxes on the opinion form were checked as to whether hypertension was incurred due to or aggravated by PTSD, the Board cannot assume which one is meant to apply to hypertension. The rationale suggests that the opinion is meant to be negative, but a rationale based solely on the lack of evidence without further explanation is inadequate. The Board concludes that the Veteran should be provided an additional VA examination of his hypertension to address these matters. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s tension headaches are at least as likely as not related to active service, to include the headaches he contends he experienced in Iraq during active service. 2. Schedule the Veteran for a VA examination of his hypertension. All indicated tests and studies should be conducted. The claims file must be provided to the examiner, and the examination report must reflect that it has been reviewed so the examiner is familiar with the Veteran’s relevant medical history. Afterwards, provide the following opinion: Is it as likely as not that the Veteran’s hypertension was incurred due to his service connected PTSD? If the answer is negative, is it as likely as not that the Veteran’s hypertension was aggravated (increased in severity beyond natural progression) by the service connected PTSD? If yes, can a base line severity of the hypertension before aggravation be established? If so, describe this baseline. The reasons for all opinions should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner’s knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel