Citation Nr: 18155313 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-50 099 DATE: December 4, 2018 ORDER Entitlement to service connection for hiatal hernia is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. A preponderance of the evidence of record establishes that the Veteran’s diagnosed hiatal hernia is less likely than not etiologically related to service. 2. A preponderance of the evidence of record establishes that the Veteran’s sleep apnea is less likely than not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hiatal hernia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2006 to October 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claims for service connection for hiatal hernia and for sleep apnea. The Veteran contends that his exposure to burn pits during service caused his hiatal hernia and sleep apnea. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. That an injury or disease occurred in service is not enough; there must be disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Hiatal Hernia Service connection may also be established for a chronic disability manifested by certain signs or symptoms 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, 2021, and which, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a). The term “Persian Gulf Veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness or a medically unexplained, chronic multisymptom illness defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317 (a). A medically unexplained, chronic multisymptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317 (a). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to: irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. A diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require that symptoms are present for at least six months prior to the diagnosis and are of sufficient severity to diagnose the specific disorder for at least three months prior to the diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). The Veteran’s service personnel records confirm that he served in Iraq from September 2007 to April 2008, participating in Operation Iraqi Freedom. The Veteran’s service treatment records (STRs) do not contain any complaints of or treatment sought for gastrointestinal symptoms. At his separation medical examination the Veteran reported that he had not previously had and currently did not have frequent indigestion or heartburn, or stomach complaints. VA treatment records reflect that the Veteran began seeking treatment for gastrointestinal problems including gastroesophageal reflux (“GER”) in 2011, with a diagnosis of hiatal hernia in 2012. A VA examination in May 2017 reviewed the Veteran’s records and found that the Veteran was not seen for the condition while he was deployed or during the remainder of active duty after returning from deployment. The examiner opined that a hiatal hernia is a concrete and credible etiology for the Veteran’s symptoms of GER. Moreover, the examiner opined that the evidence did not support any relation between the Veteran’s gastrointestinal disability and his service. Included in the examiner’s report was research concluding that Iraq veterans had been exposed to toxins and particulate matters from burn pits. The Veteran submitted an August 2015 letter that he was exposed to burn pits next to his living quarters in Iraq, and submitted literature asserting that acid reflux is believed to be a symptom resulting from exposure to burn pits. In his VA Form 9 the Veteran stated that the STRs do not show complaints of or treatment sought for a gastrointestinal condition because he stopped seeking any treatment while on active duty due to being turned away at a military hospital when he sought treatment for his knees. The Veteran’s wife and the Veteran’s mother submitted respective letters detailing the Veteran’s gastrointestinal condition that they observed he began to suffer from after returning from service. Turning to the merits, the Board observes that multiple records demonstrate that the Veteran has a current disability of hiatal hernia. Regarding service connection on a presumptive basis due to the Veteran’s service in the Gulf War, the Board concludes that the evidence establishes that the Veteran does not have a qualifying chronic disability. The May 2017 VA examination concluded that the Veteran suffers from hiatal hernia, which is a diagnosed illness that explains the Veteran’s gastrointestinal symptomatology including GER. 38 C.F.R. § 3.317(a)(2). Regarding service connection on a direct basis, the Board concludes that the evidence shows it is less likely than not that the Veteran’s experiences in service are causally related to the hiatal hernia. The May 2017 VA examiner was made aware that the Veteran was exposed to burn pits and, after reviewing the Veteran’s history and records, ultimately opined that the evidence did not support a causal link between the Veteran’s gastrointestinal disability and the Veteran’s experiences in service. Though the submission from Burn Pits 360 does suggest that acid reflux is believed to result from burn-pit exposures, it is a bare claim of causation with no internal supporting reasoning or citation to other competent and credible support. Moreover, it does not address whether a direct causal relationship exists between this particular Veteran’s acid reflux and burn-pit exposures. The US Court of Appeals for Veterans Claims has held that treatise materials generally are not specific enough to show a nexus, Sacks v. West, 11 Vet. App. 314, 317 (1998), and that medical opinions regarding a specific patient are more probative than a medical treatise. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993). Therefore, the submission warrants less probative weight than the well-reasoned examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board acknowledges the statements from the Veteran, his wife, and his mother linking the Veteran’s GER and similar symptomatology to his time in service, but notes that these statements are not competent to opine on the etiology of the symptoms, since causative factors are not readily subject to lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Having considered the totality of the evidence, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that there is a preponderance of the evidence against the existence of a nexus between the Veteran’s current hiatal hernia and service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. Sleep Apnea Concerning sleep apnea, STRs are silent regarding sleeping problems while in service. On the separation medical questionnaire the Veteran reported that he had not previously had and currently did not have frequent trouble sleeping. VA treatment records reflect that the Veteran has a current diagnosis of obstructive sleep apnea, as confirmed by a sleep study, and that he continues to suffer from and seek treatment for it. A VA examination was afforded to the Veteran in August 2015. The examiner reviewed the Veteran’s records and recorded his history, including burn pit exposure, noting that the STRs did not show any complaints of symptoms in service. The Veteran recounted that he had trouble sleeping during deployment in Iraq and that he was not diagnosed in service but only after service when undergoing evaluation for gastrointestinal conditions. The examiner observed that the Veteran gained weight between separation and the time he was diagnosed with sleep apnea, and noted that the strongest risk factor for sleep apnea is obesity. On this basis the August 2015 ultimately concluded that the Veteran’s sleep apnea was less likely than not caused by service. In the Veteran’s statement on his VA Form 9 he detailed his symptoms and his inability to sleep well even with a CPAP machine. He stated that his sleep disturbances began during deployment because soldiers are required to wake at any moment and be alert. Responding to the August 2015 VA exam’s attribution of sleep apnea to weight gained after service, the Veteran said that he began to gain weight after service due to the pain and limitation he experiences from service-connected knee conditions. The letter from the Veteran’s wife also details that the Veteran had trouble sleeping after returning from the military, resulting in fatigue that interferes with a normal life. The Board concludes that the evidence establishes that the Veteran suffers from obstructive sleep apnea, as evidenced by multiple treatment records. The Board also concludes, however, that the evidence of record indicates that the Veteran’s sleep apnea is less likely than not related to service, as opined in the August 2015 VA examination. This examination took into account the Veteran’s service records and history, including burn pit exposure, and provided a well-reasoned opinion. The Board therefore finds it highly probative. The Board acknowledges the statements from the Veteran and his wife observing changes in the Veteran’s sleeping coincident with service, but notes that because the causative factors for sleep apnea are not lay-observable, these statements are not competent to opine on the etiology of sleep apnea, and no evidence of record establishes a competence on the matter through education, training, or experience. 38 C.F.R. § 3.159; see Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Having considered the totality of the evidence of record, the Board finds that there is a preponderance of the evidence against the existence of a nexus between the Veteran’s service and sleep apnea. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, and finds that because the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable in the instant appeal. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As a final matter, the Board notes the statement from the Veteran’s representative that the Veteran has never been afforded a VA examination regarding his service-connection claim for sleep apnea. However, as aforementioned, the Veteran was provided an examination by the VA in August 2015, and that examiner took into account the Veteran’s claims file and deployment history before rendering a well- reasoned opinion. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Davis, Associate Counsel