Citation Nr: 21062812 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-20 947 DATE: October 12, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for sleep apnea, to include as secondary to unspecified anxiety disorder, is reopened. Entitlement to service connection for sleep apnea, to include as secondary to unspecified anxiety disorder, is denied. Entitlement to compensation under 38 U.S.C. § 1151 for ventral hernia is denied. REMANDED Entitlement to service connection for cirrhosis of the liver, to include as secondary to unspecified anxiety disorder, is remanded. FINDINGS OF FACT 1. The Veteran was denied entitlement to service connection for sleep apnea in a December 2015 rating decision. He did not appeal or submit new evidence within the appeal period, rendering that decision final. Evidence sufficient to reopen the claim has since been submitted. 2. The Veteran's sleep apnea is not etiologically related to service, to include as secondary to unspecified anxiety disorder. 3. The Veteran's ventral hernia residuals were not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, nor were they due to an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for sleep apnea. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for sleep apnea, to include as secondary to unspecified anxiety disorder, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for ventral hernia have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran served on active duty from April 1983 to April 1987. He appeals a July 2017 rating decision denying entitlement to compensation under 38 U.S.C. § 1151 for ventral hernia surgery residuals, an August 2017 rating decision denying entitlement to service connection for cirrhosis of the liver, and a September 2017 rating decision denying entitlement to service connection for sleep apnea. In July 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. New and Material Evidence After a review of the evidence submitted since the December 2015 rating decision became final, the Board finds that new and material evidence has been added to the record sufficient to reopen the claim. The evidence added to the record since the last final denial includes updated private treatment records from the Catawba Valley Medical Group. This evidence is new and addresses the possible connection between the Veteran's service and his sleep apnea. As such, the Board finds that reopening of the claim is warranted. Compensation Under 38 U.S.C. § 1151 Compensation shall be awarded for a post-service "qualifying additional disability" in the same manner as it were service connected. For VA purposes, a "qualifying additional disability" is a disability that was: (1) not the result of the Veteran's willful misconduct; (2) caused by hospital care, medical or surgical treatment, or an examination furnished the Veteran under any law administered by the Secretary of Veterans Affairs; and (3) the proximate cause of the disability or death was either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. With regard to the second element, merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Further, hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Id.; 38 C.F.R. § 3.361(c)(2). Regarding the third element, to establish proximate cause of a veteran's additional disability based upon the event not being reasonably foreseeable, the event need not be completely unforeseeable or unimaginable. Instead, it must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). 1. Entitlement to compensation under 38 U.S.C. § 1151 for ventral hernia. The Veteran seeks compensation under 38 U.S.C. § 1151 for residuals of ventral hernia surgery. After review of the evidence, the Board finds that compensation under 38 U.S.C. § 1151 is not warranted. As an initial matter, the Board observes that the Veteran underwent a ventral hernia repair at the Salisbury North Carolina Veterans Medical Center in June 2001. However, it is not entirely clear what additional disability the Veteran contends he suffers from as a result. At his July 2021 hearing, the Veteran contends he bled a lot after the surgery and now he is unable to use his stomach muscles. In any event, the Board finds that service connection is not warranted. The Veteran was afforded a VA examination in June 2017. After a review of the claims file, the examiner determined that no worsening of the Veteran's condition was caused by his June 2001 surgery. The examiner explained that surgery was performed without complications, and all the follow ups corroborate the benign nature of the surgery when no complication arose. Recurrence appeared in 2013, and this is an expected problem given the cirrhosis in this Veteran which increases the abdominal girth and pressure. Furthermore, no carelessness, negligence, lack of skill, or similar incidence of fault was found. In the end, the examiner determined that the 2013 recurrence was not a result of the surgery, but of comorbidities and a natural progression of the condition. The Board places considerable probative weight on the medical opinion provided by the June 2017 VA examiner as it was rendered by a qualified medical examiner after application of the facts to current medical knowledge. In summation, the medical evidence demonstrates that the Veteran has not suffered additional disability from his June 2001 ventral hernia surgery other than what is expected from the natural progression of the condition. Hence, the Board finds that any residuals of the Veteran's June 2001 ventral hernia surgery are not due to any incident of fault on the VA personnel who performed the procedure nor were they not reasonably foreseeable. For these reasons, service connection is not warranted and the claim is denied. 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. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active 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), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 2. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea is attributable to active service and/or aggravated by his service-connected unspecified anxiety disorder. After a review of the evidence, the Board finds that service connection is not warranted. First, the Board will address direct service connection. In this regard, the Veteran's service treatment records are silent as to complaints of or treatment for any sleep conditions in service. He was diagnosed with obstructive sleep apnea in December 2011. The Veteran reported at his July 2021 Board hearing that his sleep problems first began in service. Specifically, he would wake up frequently in a cold sweat or with the feeling that he needed air, as well as frequent snoring. The Board observes that although lay evidence may be competent on a variety of matters concerning the nature and cause of a disorder, the etiology of a disorder is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his sleep apnea. On the other hand, the December 2015 VA medical examiner noted that a thorough review of the current medical literature does not show that sleep apnea is caused by unspecified anxiety disorder. Furthermore, the Veteran's post-service medical records are silent as to treatment for sleep apnea prior to 2011, over a decade after separation from active service. Based on the foregoing, the Board finds that the Veteran's sleep apnea is not the result of any injury or event of service and thus, service connection on a direct basis is not warranted. Next, the Board will address service connection on a secondary basis. The Veteran argues that his sleep apnea is aggravated by his service-connected unspecified anxiety disorder. The Board recognizes the statements from the Veteran regarding an alleged relation between his unspecified anxiety disorder and sleep apnea. While the Veteran is competent to report that he experiences certain symptoms, he is not competent to provide a medical opinion regarding the particular effects his disorders have had on each other. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Although the Veteran is not competent to diagnose and provide etiological opinions related to the disorder on appeal, service connection may nonetheless be established if a nexus is shown by competent evidence, including medical evidence and opinions. Turning to the medical evidence, the Board finds the opinion of the December 2015 VA examiner to be highly probative. After a review of current medical literature, to include articles submitted by the Veteran, the VA examiner determined that the Veteran's sleep apnea was less likely than not proximately due to his unspecified anxiety disorder. The examiner noted that neither of the studies cited in the articles asserted or found causation or aggravation of obstructive sleep apnea by anxiety. Moreover, a review of the overall current medical literature does not show that sleep apnea is aggravated by anxiety. The Board assigns significant probative weight to the opinion of the December 2015 VA examiner. The opinion was rendered by a qualified medical professional after complete review of the Veteran's claims file and application of the facts to current medical knowledge. As such, the evidence indicates that the Veteran's sleep apnea is not aggravated by his service-connected unspecified anxiety disorder. Accordingly, service connection on a secondary basis is not warranted. Considering the above discussion, the Board concludes that the preponderance of the evidence is against his claim of service connection for sleep apnea and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for cirrhosis of the liver is remanded. The Veteran contends that his cirrhosis of the liver is attributable to alcohol use disorder related to his service-connected unspecified anxiety disorder. He has yet to be afforded a VA examination to evaluate his claim. Based on the record as it stands, the Board is unable to proceed with adjudication of the claim. Although the Veteran has claimed on various occasions that he did not consume alcohol prior to service, military personnel records clearly show conviction for a pre-service DUI in February 1981. As such, the onset of the Veteran's condition is unclear. Also, a July 2006 VA examination noted that the Veteran's alcohol dependence appears to be a coping mechanism to deal with his military experiences. While it is true that service connection may not be granted for alcohol abuse, per se, it may serve as a cause of another disorder, if it can be attributed to service or to another service-connected disability. Therefore, remand for a VA examination is necessary to determine the etiology of the Veteran's alcohol use disorder and whether it was aggravated by active service or a service-connected disability. . The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records that are currently not of record. If the Veteran has received any relevant private treatment, he should be afforded the opportunity to submit these records. 2. Schedule the Veteran for an VA examination to determine the relationship between the Veteran's alcohol use disorder and active service. The examiner is asked to respond to the following inquiries. (a.) Is it at least as likely as not that the Veteran's alcohol use disorder was caused or worsened by his service-connected unspecified anxiety disorder? (b.) Is it at least as likely as not that the Veteran's alcohol use disorder was incurred in or is otherwise related to his active service? In rendering this opinion, the examiner 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 examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner 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. The complete rationale for all opinions should be set forth. 3. After the above has been completed to the extent possible, readjudicate the claim. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel