Citation Nr: 21003193 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-26 511 DATE: January 19, 2021 ORDER Entitlement to service connection for gastritis is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s gastritis was caused by medications used to treat his service-connected left shoulder condition. CONCLUSION OF LAW The criteria to establish service connection for gastritis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1987 to March 1992. The Veteran appealed a December 2012 rating decision by the Agency of Original Jurisdiction (AOJ). In March 2018 and June 2020, the Board of Veteran’s Appeals (Board) remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A veteran is entitled to the Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran is diagnosed with gastritis. See November 2012 VA examination report. The Veteran is service-connected for a left shoulder condition. The December 2009 VA examination report regarding joints noted the side effects of the Veteran’s “NSAIDs cause stomach pain” and “gastric upset.” The November 2012 VA examiner noted the Veteran was taking pain medication for his shoulder condition and that gastritis can be caused by irritation due to, among other things, certain medications such as anti-inflammatory drugs. The October 2019 VA examiner noted an onset date for gastritis of 1992. The Veteran stated his gastritis started in the 1990s and that he has the same symptoms on the daily basis. See May 2014 Veteran statement. The Veteran’s service treatment records (STRs) noted possible gastric irritation secondary to NSAIDs. See April 1990 STRs. The Veteran’s left shoulder fracture occurred in October 1988. Overall, the Veteran entered service without any stomach issues. See December 1986 STRs. The Veteran would fracture his left shoulder during service and take pain medication. Following the Veteran’s left shoulder fracture, STRs noted stomach issues that may be secondary to NSAIDs. The Veteran stated his gastric symptoms have continued since service. The Veteran is competent to attest to symptoms regarding his stomach. The Board finds his assertions credible. Medical professionals have related gastric issues to NSAIDs the Veteran takes for his service-connected left shoulder condition. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s gastritis is related to his service-connected left shoulder condition. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s gastritis was caused by medication taken for his service-connected left shoulder condition. Accordingly, service connection for gastritis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The June 2020 Board decision specifically remanded the issue of service-connection for sleep apnea for a new VA opinion that provided separate findings and rationales relating to secondary causation and aggravation to the Veteran’s service-connected left shoulder condition. However, the October 2020 VA opinion combined the etiology opinion into a single duplicative paragraph. Additionally, much of the analysis detailed issues with esophagitis instead of the relationship between sleep apnea and medication taken for the Veteran’s left shoulder condition. The Board finds the October 2020 VA opinion inadequate as it does not comply with the June 2020 Board decision’s remand instructions. Pursuant to this decision, the Veteran is now service-connected for gastritis. The Veteran noted his acid reflux impacts his sleeping. See May 2014 Veteran statement. The October 2020 VA opinion noted there is no plausibility for GERD to cause or aggravate sleep apnea. Although analysis was provided regarding esophagitis in the October 2020 VA opinion, it is unclear whether the opinion’s reference to esophagitis encompasses the impact of the Veteran’s gastritis. It is unclear if esophagitis and gastritis are one of the same. Therefore, another opinion is required to clarify if the Veteran’s service-connected gastritis causes or aggravates his sleep apnea. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his sleep apnea that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s sleep apnea. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s sleep apnea was incurred in, or otherwise related, to his time on active service? Is it at least as likely as not that the Veteran’s sleep apnea was CAUSED by his service-connected left shoulder condition, to include medication taken for his left shoulder condition? Is it at least as likely as not that the Veteran’s sleep apnea was AGGRAVATED by his service-connected left shoulder condition, to include medication taken for his left shoulder condition? Is it at least as likely as not that the Veteran’s sleep apnea was CAUSED by his service-connected gastritis? Is it at least as likely as not that the Veteran’s sleep apnea was AGGRAVATED by his service-connected gastritis? The reviewing clinician is to provide separate causation and aggravation opinions with separate findings and rationales. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must 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. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate 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.