Citation Nr: 21002112 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-14 383 DATE: January 12, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. Service connection for a bowel condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s OSA is related to service or is secondary to any service-connected disability or condition. 2. The preponderance of the evidence is against a finding that the Veteran has a bowel condition that is related to service or is secondary to any service-connected disability or condition. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a bowel condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to March 1992. These matters are before the Board of Veterans Appeals (Board) on appeal from AOJ rating decisions. The Board remanded the Veteran’s claims for additional development in September 2016, June 2017 and most recently in January 2019. The Board finds that there has been substantial compliance with the January 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Service Connection Legal Criteria Service connection may be granted for disability or injury incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. This generally requires a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Ward v. Wilkie, 17-1204 (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Service connection for OSA Factual Background & Analysis The Veteran’s primary contention is that his diagnosed OSA is secondary to service-connected gastritis. He communicated worsening symptoms in his sleep patterns and snoring coinciding with his worsening gastritis symptoms. He further stated that he cannot sleep because of acid regurgitation not allowing to use his CPAP machine. See April 2016 notice of disagreement (NOD). On March 2016 VA examination the examiner opined that it was less likely than not that the Veteran’s OSA was proximately due to or the result of chronic gastritis but merely stated that it was “not medically plausible” as the only rationale. On September 2019 VA examination the examiner found it to be less likely than not that the Veteran’s OSA is directly due to his service. The examiner noted that there was no evidence of record to support a diagnosis for a sleep disorder in the Veteran’s STRs and that he did not report any sleeping troubles at separation from service. Likely risk factors for OSA were noted to be age and obesity. The examiner next found it to be less likely than not that the Veteran’s OSA is proximately due to or aggravated beyond its natural progression by service-connected chronic gastritis. The examiner noted that the current level of research does not support a link been these two disabilities. An addendum medical opinion was mandated following a January 2019 Board remand. An October 2020 VA addendum medical opinion first opines that that it is less likely than not that the Veteran’s OSA is proximately due to or the result of the Veteran’s service-connected chronic gastritis. As a rationale, the examiner explained that a gastric condition would not be medically expected to be causative for OSA. The examiner acknowledged the Veteran’s lay statements and a submitted WebMD article positing a causal relationship. The examiner explained that the WebMD article does not conclude or establish a causal relationship between these disabilities and cites to an American College of Gastroenterology study which found no clear relationship between these disabilities. The examiner further noted the Veteran’s risk factors for OSA including advanced age and morbid obesity. With respect to aggravation, the examiner determined that a baseline level of severity of snoring complaints with mild OSA and an AHI of 5.8 in 2015 could be established based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service-connected condition. The examiner than opined that the current severity of the claimed condition is not greater than the baseline noting that OSA is the result of an upper airway collapse and that a gastric condition would not be causative for aggravation of OSA. The Board initially finds that the preponderance of the evidence weighs against finding that the Veteran’s OSA is directly related to his service. The Veteran has not contended that his OSA was incurred in or caused by events during service and the medical evidence does not otherwise demonstrate an in-service incurrence of OSA or OSA symptoms, or a direct nexus between OSA and the Veteran’s service. Additionally, the preponderance of the competent medical evidence weighs against finding that OSA is proximately due to or the result of the Veteran’s service-connected gastritis. The October 2020 VA medical addendum addresses this theory of entitlement and found it to be less likely than not that the Veteran’s OSA was proximately due to or the result of service-connected chronic gastritis. The examiner provided an adequate rationale explaining that a gastric condition would not be medically expected to be causative for OSA and cited to an American College of Gastroenterology study which found no clear relationship between these disabilities. The examiner further noted the Veteran’s risk factors for OSA including advanced age and morbid obesity are more likely causes. With respect to aggravation, the examiner determined that a baseline level of severity of snoring complaints with mild OSA and an AHI of 5.8 in 2015 could be established, and the current severity of OSA is not greater than the baseline, noting that OSA is the result of an upper airway collapse and that a gastric condition would not be causative for aggravation of OSA. The Board has considered the Veteran’s lay contentions that his OSA is causally related to his service-connected chronic gastritis. While the Board does not doubt the sincerity of these contentions, establishing a medical nexus between these disabilities requires a degree of medical expertise and training that the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board must place more probative weight on the opinions of trained medical personnel of record. In that regard, the Board finds the October 2020 VA addendum medical opinions to be highly probative. The examiner considered the Veteran’s entire claims file including his lay statements and provided a clear conclusion with supporting rationale. In sum, the preponderance of the evidence is against finding that a medical nexus exists between OSA and 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. Service connection on a direct basis is not warranted. Further, service connection on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury is also not warranted based on the competent medical evidence of record. 38 C.F.R. § 3.310. 2. Service connection for a bowel condition Factual Background & Analysis In a November 2015 correspondence the Veteran stated that he experiences bowel leakage which he contends is directly related to his service or secondary to service-connected chronic gastritis. A December 2015 VAMC primary care outpatient note documents a complaint of leakage with his stool which has been ongoing for the past 5 months. The Veteran stated he believes it may be related to constipation. On March 2016 VA examination the examiner noted that the Veteran had a colonoscopy in November 2015 which was normal and did not reveal any bowel disabilities besides for three benign colon polyps. A biopsy confirmed hyperplasia. There was no rectal/anal inflammation found. The examiner recommended dietary changes. A May 2016 correspondence from the Veteran describes symptoms of abdominal and irritation in the stomach with occasional diarrhea, constipation and bloating a few times a week. He experiences a burning, upset stomach feeling and occasional tarry stools. He further reported anal leakage which interferes with his work schedule, in addition to occasional nausea. In the May 2016 notice of disagreement (NOD) the Veteran stated that his VAMC primary care physician agreed that his constant diarrhea and constipation with due to medication to treat service-connected chronic gastritis and ulcers. VAMC treatment records from February to May 2017 document continued abdominal discomfort and constipation. Following a January 2019 Board remand, a September 2019 VA addendum medical opinion was submitted which determined that the Veteran does not have a diagnosable bowel condition. The examiner provided a full medical history of the Veteran’s documented complaints of bowel symptoms beginning with the Veteran’s complaints of rectal mucus in December 2015 that he felt were due to constipation. Additionally, the examiner referred to the November 2015 colonoscopy which was normal besides for several benign hyperplastic polyps. The examiner cited to a January 2017 VAMC primary care note which linked intermittent abdominal discomfort and cramping with certain food items. Another cited to February 2017 VAMC primary care note documented no complaints of any abdominal discomfort and linked the Veteran’s complaints to his GERD. Further, the examiner noted that a review of the medical records reveals that the Veteran’s primary care physician and gastroenterology specialist determined that his abdominal complaints are likely due to episodic constipation which had been alleviated by use of Miralax and that no bowel condition has been diagnosed. Here, after a thorough review of the Veteran’s medical records, including a November 2015 colonoscopy, neither the March 2016 nor September 2019 VA examiner’s concluded that the Veteran has a diagnosis for a bowel condition. A veteran’s lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on cause and the statements of the veteran therein cannot be accepted as competent medical evidence. The Board has considered the Veteran’s assertion that he has a diagnosable bowel condition that may be related to service-connected chronic gastritis. Disabilities affecting the gastrointestinal tract are complex and not readily observable by laypersons. Accordingly, the Board does not find the Veteran’s lay statements competent to provide a diagnosis in this instance. Conversely, the Board ascribes significant probative weight to the VA examination reports and opinions of record which were rendered by qualified medical personnel. Finally, if the Board were to accept the Veteran’s lay statements as probative evidence of a current bowel disability, the preponderance of the evidence still weighs against finding a nexus between a bowel condition and the Veteran’s service or a relationship between this disability and service-connected chronic gastritis. As discussed, a January 2017 VAMC primary care note linked intermittent abdominal discomfort and cramping with certain food items. Another February 2017 VAMC primary care note documented no complaints of any abdominal discomfort and linked the Veteran’s complaints to his non-service-connected GERD. In summary, the competent medical evidence of record weighs against a finding that the Veteran’s has had a diagnosable bowel condition during the appeal period. Because the first element of service connection has not been satisfied, the claim cannot be successful. Moreover, the probative evidence of record also does not reveal a nexus between any claimed bowel condition and the Veteran’s service or service-connected disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, that doctrine does not apply, and the Veteran’s claim under either a direct or secondary service connection theory must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.