Citation Nr: 20021902 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-33 593 DATE: March 27, 2020 REMANDED The claim of entitlement to service connection for sleep apnea is remanded. The claim of entitlement to service connection for a hiatal hernia is remanded. The claim of entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran had active service from September 1980 to January 1981 and from May 2007 to July 2008. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified in a Board hearing convened at the RO. A transcript of the hearing has been included in the electronic claims file and has been reviewed. A remand of the claims is warranted for additional medical inquiry. The RO provided the Veteran with a VA compensation examination into his claims in September 2015. The examiner found that sleep apnea, hiatal hernia, and GERD were not related to service, but were due to an anatomic problem. The examiner did not detail what the anatomic problem was. Nor did the examiner address the Veteran’s assertions that he manifested the disorders during service and that, alternatively, he developed the disorders as the result of service-connected disability. The examination report is therefore inadequate to decide the claims. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims to the extent possible. Include in the record any outstanding VA treatment records, the most recent of which are dated in June 2015. All records/responses received must be associated with the electronic claims file. 2. Schedule an examination to determine the nature and etiology of diagnosed sleep apnea. After reviewing the claims file, interviewing the Veteran, and examining the Veteran, the examiner should answer the following questions. (a). Is it clear and unmistakable (i.e., undebatable) that the Veteran had an anatomic disorder causing sleep apnea upon commencement of active duty in May 2007? In answering (a), discuss the April 2007 entrance report of medical examination which is negative for sleep apnea, and the September 2015 VA report finding an anatomic disorder as the cause of sleep apnea. (b). If so, is it also clear and unmistakable that the pre-service disorder was not aggravated (i.e., permanently worsened beyond the natural progress) by service? In other words, is it clear and unmistakable that, if there was an increase in severity of the disorder during service, that increase in severity was due to the natural progress of the disorder? If you find that there was no increase in severity during service, please state so. Only answer (b) if you find under (a) that it is clear and unmistakable that an anatomic disorder causing sleep apnea existed prior to service in May 2007. If not, skip (b) and answer (c) and/or (d). If (b) is answered, discuss the STRs, which note complaints of sleep problems during service. Note that while a congenital disorder itself may not be service connected, a superimposed disorder resulting from aggravation of a congenital disorder may be service connected. So, if you find under (a) that a congenital anatomic disorder causing sleep apnea clearly and unmistakably existed prior to service, address under (b) whether such a disorder was clearly and unmistakably not aggravated by service to such an extent that a superimposed disorder resulted. (c). Is it at least as likely as not (i.e., probability of 50 percent or greater) that sleep apnea had its onset during service, or is related to a disease, event, or injury during service? The examiner should answer (c) irrespective of the answers to (a) and (b). (d). If the answer to (c) is against the claim, is it at least as likely as not that sleep apnea is due to or caused by service-connected disability (e.g., neck disability, or hiatal hernia/ GERD if found service connected)? (e). If the answers to (c) and (d) are against the claim, is it at least as likely as not that sleep apnea has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability (e.g., neck disability, or hiatal hernia/ GERD if found service connected)? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and the other lay witnesses, the examiner should indicate this in the examination report and provide a rationale for that determination. Please explain in detail any opinion provided and the supporting rationale. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule an examination to determine the nature and etiology of diagnosed hiatal hernia/GERD. After reviewing the claims file, interviewing the Veteran, and examining the Veteran, the examiner should answer the following questions. (a). Is it clear and unmistakable (i.e., undebatable) that the Veteran had hiatal hernia/GERD, or an anatomic disorder causing hiatal hernia/GERD, upon commencement of service in May 2007? In answering (a), discuss the April 2007 entrance report of medical examination which is negative for hiatal hernia/GERD, and the September 2015 VA report finding an anatomic disorder as the cause of hiatal hernia/GERD. Also discuss the April 2007 report of medical history, which indicates that the Veteran reported having a peptic ulcer as a teenager and a vagotomy to correct the problem at the age of 24. (b). If so, is it also clear and unmistakable that the pre-service disorder was not aggravated (i.e., permanently worsened beyond the natural progress) by service? In other words, is it clear and unmistakable that, if you find an increase in severity during service, any increase in severity of pre-service hiatal hernia/GERD, or a pre-service anatomic disorder causing hiatal hernia/GERD, was due to the natural progress of the disorder? If you find that there was no increase in severity during service, please state so. Only answer (b) if you find under (a) that it is clear and unmistakable that hiatal hernia/GERD, or an anatomic disorder causing hiatal hernia/GERD, existed prior to service commencing in May 2007. If not, skip (b) and answer (c) and/or (d), (e), and (f). If (b) is answered, discuss the STRs, which note complaints of coughing during service, which the Veteran asserts were symptoms of hiatal hernia/GERD. Note that while a congenital disorder itself may not be service connected, a superimposed disorder resulting from aggravation of a congenital disorder may be service connected. So, if you find under (a) that a congenital anatomic disorder causing hiatal hernia/GERD clearly and unmistakably existed prior to service, address under (b) whether such a disorder was clearly and unmistakably not aggravated by service to such an extent that a superimposed disorder resulted. (c). Is it at least as likely as not (i.e., probability of 50 percent or greater) that hiatal hernia/GERD had its onset during service, or is related to a disease, event, or injury during service? The examiner should answer (c) irrespective of the answers to (a) and (b). (d). If the answer to (c) is against the claim, is it at least as likely as not that the Veteran had a peptic ulcer that manifested to a compensable degree at any time between July 2008 and July 2009? In answering (d), discuss the February 2009 VA treatment records noting reflux, dysphagia, paroxysms of coughing, and sore throat. (e). If the answers to (c) and (d) are against the claim, is it at least as likely as not that hiatal hernia/GERD is due to or caused by service-connected disability (e.g., neck disability, medications used for service-connected disability)? (f). If the answers to (c) through (e) are against the claim, is it at least as likely as not that hiatal hernia/ GERD has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability (e.g., neck disability, medications used for service-connected disability)? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and the other lay witnesses, the examiner should indicate this in the examination report and provide a rationale for that determination. (Continued on the next page)   Please explain in detail any opinion provided and the supporting rationale. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.