Citation Nr: 18159727 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 15-13 418 DATE: December 20, 2018 ORDER Entitlement to service connection for acid reflux, claimed as secondary to obstructive sleep apnea is denied. Entitlement to service connection for headaches is granted. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression is granted. REMANDED Entitlement to service connection for a left hand/wrist condition is remanded. Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to service connection for a respiratory disability, to include obstructive pulmonary disease is remanded. FINDINGS OF FACT 1. Acid reflux was not caused or aggravated by a service-connected disability. 2. The evidence is in equipoise as to whether the Veteran’s headaches began during service and continued since discharge. 3. The most probative evidence reflects that the Veteran’s depression is related to his duties during service. CONCLUSIONS OF LAW 1. The criteria for service connection for acid reflux, claimed as secondary to obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for depression have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1991 to November 1994. His military decorations include a Humanitarian Service Medal. Service Connection 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.   Acid Reflux Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. See 38 C.F.R. § 3.310 (a). The Court has construed this provision as entailing “any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Veteran is claiming that his acid reflux was caused or aggravated by obstructive sleep apnea. See Board Hearing Transcript, pp. 11-12. 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 service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of acid reflux, the preponderance of the evidence is against finding that the Veteran’s acid reflux 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). Here, the Veteran asserts that his obstructive sleep apnea has caused or aggravated his acid reflux. In support of his claim, the Veteran has provided medical literature which discusses the correlation between use of a CPAP machine and acid reflux. See Correspondence received on November 14, 2017. Based on this evidence, the Board cannot find that service-connection is warranted on a secondary basis. While the evidence suggests a possible correlation between the Veteran’s acid reflux and his sleep apnea, the Veteran is not service-connected for sleep apnea. Therefore, service connection for acid reflux is not warranted on a secondary basis. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s acid reflux 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). There is no objective evidence suggesting, nor does the Veteran contend, that acid reflux began during service, was caused by any event during service or is otherwise attributable thereto. In sum, the preponderance of the evidence shows that the criteria for service connection on a secondary basis are not met for the Veteran’s acid reflux disability. See 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 448. The claim is denied. Headaches The record reflects that the Veteran currently has a headache disability. Throughout the appeal period, the Veteran has consistently reported having intermittent headaches. He was often advised to alleviate his symptoms with over-the-counter medication. See VA Treatment Records from 2013-2017. As far as in-service injury, the majority of the Veteran’s military records are missing. However, at the Board hearing, the Veteran testified that he began to get regular headaches during service. He indicated that he was constantly exposed to loud noises and smoke grenades, which resulted in headaches and ringing in the ears. He stated that he sought treatment from the field medic, who would give him asprin. He described the frequency of his headaches as constant since service. See Board Hearing Transcript, pp. 7-9. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. In reviewing the lay statements of record, the Board finds that the Veteran is both competent and credible in his testimony regarding headaches during and since service. His statements describing the onset and frequency of headache pain have remained consistent during the appeal period and there is nothing to impeach his testimony. His personnel records support his contentions that he was exposed to loud noises and smoke grenades during the time he was deployed. As such, the Board finds that his statements are highly probative as to the issue of continuity of symptomatology. 38 U.S.C. § 1154(b). The Veterans Benefit Administration (VBA) Adjudication Manual, M21-1, Part.III.iv.4.G.1.d. deems migraine headaches as an organic disease of the nervous system. Thus, service connection may be based on credible evidence of continuity of symptomatology alone under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the record reflects that the Veteran had several in-service headaches, the Veteran has reported continuity of symptomatology since service, and the Board finds no evidence impeaching his testimony. The Board concludes that the evidence is, at least, in relative equipoise on the nexus question. Accordingly, further evidentiary development is not necessary. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the benefit-of-the-doubt rule is applicable in this case, and continuity of chronic headaches since service is established. Acquired Psychiatric Disorder The Veteran is claiming service connection for an acquired psychiatric disorder, secondary to his service. Specifically, the Veteran contends that during service, he was deployed to Haiti, at which time he experienced a violent incident in which he and his company were assaulted. He remembers a soldier falling from a building after being hit with a rock. He also asserts that his command was sent to Florida to assist in disaster relief efforts after Hurricane Andrew. He states that while in Florida, he witnessed numerous dead bodies in addition to the disastrous conditions. See Board Hearing Transcript, pp. 12-15. As previously noted, a significant portion of the Veteran’s military records are missing. However, available personnel records establish that the Veteran served in the 1st Battalion, 87th Infantry from November 1991 until his release from active duty in November 1994. During the appeal period, the RO sent a request to the JSRRC to verify the Veteran’s claims. An October 2017 response from the JSRRC establish that the 1st Battalion, 87th Infantry was sent to Florida from August 1992 to October 1992 to assist in hurricane disaster relief. The battalion’s responsibilities included setting up city camps, distributing food, ice, water, and medical necessities. The JSRRC also confirmed the battalion was also deployed to Haiti from August 1994 to October 1994 and documented an incident in which a soldier was injured after falling of a building. When viewing the Veteran’s statements in light of the objective evidence of record, the Board finds that his statements are both competent and credible as to the events he experienced and witnessed while serving in the 1st Battalion, 87th Infantry. Throughout the appeal period, his statements have remained consistent; the specific details he provided have never changed. In addition, his statements are confirmed by the responses from the JSRRC, which document the duties of the Veteran’s battalion while stationed in Florida and Haiti. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the lay testimony regarding what happened during service to be consistent with the circumstances of his service as an Infantryman. 38 U.S.C. § 1154(b). The Board also concludes that the Veteran has a current diagnosis of depression that is related to the events he experienced during service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In January 2018, the Veteran underwent a private psychological evaluation. At that time, Dr. M.B. diagnosed PTSD and severe major depressive disorder. After examination of the Veteran and review of the Veteran’s treatment notes and medical history, Dr. M.B. opined that the Veteran’s PTSD and depression were at least as likely as not caused by the in-service events, specifically witnessing significant destruction and death during hurricane disaster relief. The Board finds that this opinion is competent and credible, as it is based on the specific facts of the Veteran’s service and sound medical principles. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the positive nexus opinion of record, and the lack of any competent, credible opinion to the contrary, the Board finds that service connection for depression is warranted. The claim is granted. REASONS FOR REMAND Left Hand/Wrist and Bilateral Foot Condition To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of his left upper extremity and bilateral foot disabilities. The Veteran contends that his left hand/wrist and bilateral foot disabilities are directly related to service. He claims that due to his duties, including carrying heavy weapons and marching for long periods, he developed his current disabilities. Remand is required to afford the Veteran appropriate VA examinations. Left Ear Hearing Loss The Veteran is currently service-connected for right ear hearing loss disability and tinnitus, secondary to acoustic trauma in service. At the May 2016 VA examination, the clinician found that the Veteran’s audiogram indicated that he had a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385. However, the examiner did not provide a nexus opinion, reasoning that there was “possible malingering.” The examiner did not provide further explanation or detail. Upon remand, the Veteran should be afforded another VA examination to determine if he has a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385, and if so, whether it is related to service, his right ear hearing loss disability, or his tinnitus. Respiratory Disability The Veteran’s claim for entitlement to service connection for a respiratory disability was last readjudicated in May 2015. The RO continued the denial of the Veteran’s claim, reasoning that there was no evidence of a diagnosis of obstructive pulmonary disease. See Statement of the Case dated May 15, 2015. Since that time, medical records have been added to the file, indicating that the Veteran received treatment for various respiratory disabilities, to include bronchitis and upper respiratory infections. Since this evidence has not been considered by the RO in the first instance, the Board will remand for issuance of a Supplemental Statement of the Case. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left hand/wrist disability and bilateral foot disability. The examiner must opine whether each disability is at least as likely as not related to an in-service injury, event, or disease, including carrying heavy weapons and long periods of marching. All opinions must be thoroughly explained and an adequate rationale for any conclusions reached should be provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left ear hearing loss disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including conceded acoustic trauma during service. If not, the examiner is asked to opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected right ear hearing loss and/or tinnitus. The medical professional is informed that “aggravation” is defined as a permanent worsening of a disability beyond its natural progression. All opinions must be thoroughly explained and an adequate rationale for any conclusions reached should be provided. 4. Readjudicate the claims on appeal. If the claims are not granted to the Veteran’s satisfaction, provide him and his representative a Supplemental Statement of the Case and allow them the appropriate time to respond before returning the appeal to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Orie, Associate Counsel