Citation Nr: 21062256 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-46 015 DATE: October 6, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a respiratory condition is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his obstructive sleep apnea is at least as likely as not related to service. CONCLUSION OF LAW The criteria to establish service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1997 to September 1997 and October 2004 to January 2006. He appeals a February 2015 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in January 2020. A transcript is of record. Thereafter, in March 2020, the Board reopened the Veteran's petition of entitlement to service connection for obstructive sleep apnea and remanded the claim to the AOJ for further development. In the March 2020 decision, the Board also remanded the Veteran's claims of entitlement to service connection for respiratory condition and GERD to the AOJ for further development. The claims are back before the Board for further appellate proceedings. Service Connection Obstructive Sleep Apnea A Veteran is entitled to 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. 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). The Veteran has obstructive sleep apnea. See March 2020 VA examination report. In addition, he reported at his Decision Review Officer hearing that he started experiencing symptoms of his sleep apnea very shortly after getting home from Iraq. See September 2017 Decision Review Officer Hearing Tr. at 41. Notably, the Veteran served in Iraq and Kuwait from December 30, 2004 to December 4, 2005 during his period of active duty that ended in January 2006. See DD 214. The Veteran is competent to report his symptomatology of his condition. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, based on the credible testimony of when the Veteran first experienced his symptoms of sleep apnea, the Board concludes that the first two Shedden elements have been met even though the Veteran is not competent to associate any of his claimed symptoms to a diagnosis of sleep apnea as the issue is medically complex as it requires specialized medical education to diagnose a sleep related disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). On this question, the Board finds there is a probative opinion associating the Veteran's sleep apnea with service. In March 2020, a VA examiner opined that it is at least as likely as not that he Veteran's obstructive sleep apnea was incurred in or caused by his service. See March 2020 VA opinion at 5. In support of the opinion, the examiner noted the January 2007 sleep study that showed obstructive sleep apnea. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's obstructive sleep apnea is directly related to his service. As such, service connection for obstructive sleep apnea is warranted. REASONS FOR REMAND 1. GERD Following the March 2020 Board remand to in part obtain an opinion as to whether the Veteran's service-connected disabilities have caused or aggravated his GERD, a VA examiner opined in March 2020 that there is no causality with any diagnosed psychiatric disability or low back disability. However, the opinion does not reflect consideration of whether the Veteran's service-connected disabilities have aggravated his GERD. Therefore, a remand is required for another VA opinion that appropriately addresses possible aggravation of the Veteran's GERD by a service-connected disability. 2. Respiratory Condition Following the March 2020 Board remand to in part obtain opinions as to whether the Veteran has a respiratory condition that is directly related to his service or secondary to any service-connected disability, a VA examiner opined in March 2020 that the Veteran does not have a diagnosis of a respiratory condition that is at least as likely as not incurred in or caused by his service. The examiner also opined that there is no evidence of a relationship between any respiratory condition and a service-connected disability. First, as part of the rationale in support of the opinion as to the Veteran not having a respiratory condition that is directly related to his service, the examiner noted that the Veteran's "tentative d[iagnosis] of asthma is therefore not substantiated by objective testing or response to standard asthma therapies." However, there are multiple diagnoses of asthma in the record, including the accompanying March 2020 VA examination report. Thus, an additional opinion is necessary as to whether the Veteran has a respiratory condition that is directly related to his service. Second, the opinion does not reflect specific consideration of whether the Veteran has a respiratory condition that has been aggravated by a service-connected disability. Thus, an additional remand is required. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his GERD and any respiratory condition 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. After completing the development above, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's GERD. 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 GERD was caused or aggravated by a service-connected disability, including his psychiatric disability and low back disability, specifically the recovery period for an October 2012 spinal fusion. In rendering these opinions, 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 solely 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. 3. After completing the development above, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's respiratory condition. 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: A. Is it at least as likely as not that the Veteran's respiratory condition (diagnosed as asthma and chronic obstructive pulmonary disease (COPD)), was incurred in, or is otherwise related to, his time on active service, including his service in Iraq and Kuwait? B. Is it at least as likely as not that the Veteran's respiratory condition (diagnosed as asthma and GERD) was caused or aggravated by a service-connected disability, including his psychiatric disability and low back disability, specifically the recovery period for an October 2012 spinal fusion. C. If the inquiries above are answered in the negative, the examiner should indicate whether the etiology or pathophysiology of the Veteran's respiratory condition is not conclusive as to this particular Veteran. In rendering these opinions, 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 solely 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. (Continued on the next page) 4. After the above development has been completed, readjudicate the claims. 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 N. Breitbach, 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.