Citation Nr: 21064023 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-30 022 DATE: October 18, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, as secondary to the service-connected diabetes mellitus, type II, is granted. Subject to the laws and regulations governing the award of monetary benefits, entitlement to an initial 30 percent rating, but no higher, for the service-connected gastroesophageal reflux disease (GERD) is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's sleep apnea is caused or aggravated by his diabetes mellitus, type II, through obesity as the intermediate step. 2. Resolving any reasonable doubt in favor of the Veteran, for the entire initial rating period, the Veteran's GERD has more nearly approximated persistently recurrent epigastric distress with reflux, dysphagia, pyrosis and regurgitation, with substernal pain productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea, as secondary to the service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an initial 30 percent rating for the service-connected GERD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to January 1972. This appeal to the Board of Veteran's Appeals (Board) arose from May and November 2013 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). During the current appeal, and specifically in April 2017, the Veteran testified before a Veterans Law Judge. A transcript of the hearing is associated with the file. In April 2018, the Board remanded the claims for further evidentiary development. In Janaury 2020, the Agency of Original Jurisdiction (AOJ) granted service connection for hypertension. As the Veteran has not yet filed a NOD contesting either the effective date or the level of compensation assigned following the grant of service connection, this issue is no longer part of the current appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). In this regard, the Board notes that, in the June 2020 Supplemental Statement of the Case (SSOC), the AOJ denied service connection for hypertension. However, as the most recent codesheet still lists hypertension as a service-connected condition. See January 2020 Rating Decision Codesheet. There has been no finding that the January 2020 grant of service connection for hypertension was the result of clear and unmistakable error, and the AOJ has not proposed to sever service connection, as required by law and regulations. Therefore, the Board finds that the inclusion of hypertension in the SSOC was done in error and that service connection remains in effect for hypertension. The law requires that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7102; 38 C.F.R. § 20.707. In August 2021, the Board sent the Veteran a letter notifying him of the unavailability of the VLJ who presided over the April 2017 hearing. The Veteran was provided the opportunity to decide whether he wanted another hearing before another VLJ. The letter also informed the Veteran that, if he did not respond within 30 days of the date of the letter, the Board would presume that he does not want a hearing and proceed accordingly. See August 2021 BVA Letter. As the Veteran did not respond within the applicable time period, the Board will proceed with further appellate review of this appeal. Service connection for obstructive sleep apnea, as secondary to the service-connected diabetes mellitus, type II The Veteran asserts that his obstructive sleep apnea is related to his service-connected diabetes mellitus, type II. The evidence establishes that the Veteran has a current diagnosis of obstructive sleep apnea. Service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Regarding whether there is a nexus, a February 2020 VA examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea (OSA) was proximately due to his service-connected diabetes. The examiner indicated that the Veteran's diabetes was well controlled on medication to the point which would not likely cause an airway obstruction. The examiner explained that, in order for the diabetes to affect the mechanical clearance, the severity of the diabetes would have to be well out of control. Regarding medications, the examiner commented that medical literature does not list weight gain as a studied side effect of the Veteran's medications and that the primary medication, Metformin, has a side effect of moderate weight loss. In a September 2019 medical opinion regarding the etiology of the Veteran's hypertension, the examiner noted that the Veteran was taking Sulfonylurea for management of his diabetes mellitus. The examiner explained that this drug was associated with modest weight gain and that the Veteran's medication to control his diabetes was at least as likely as not contributing to his continued weight gain, leading to obesity. The examiner also noted that insulin was associated with modest weight gain. See September 2019 VA Examination (Medical Opinion). In June 2020, the VA examiner provided a negative nexus opinion regarding a relationship between the Veteran's OSA and his service-connected PTSD, hypertension, and GERD. The examiner explained that, although there was a reported association with PTSD, there is no causality shown in the vast majority of articles and literature and medical psychiatry consensus broadly speak to there being no permanent aggravation. Regarding the role of hypertension and GERD, the examiner opined that there was no anatomic or physiologic connection between these disorders and sleep apnea. The examiner noted that, while obesity is a risk factor for developing OSA, it is not a cause of OSA. The examiner stated it was speculative to opine as to the development of OSA if the Veteran was not obese. The precedential opinion of VA's General Counsel, VAOPGCPREC 1-2017, states that obesity may not be service-connected in and of itself but that obesity may be an "intermediate step" between a service-connected disability and a current disorder that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). The question is whether the service-connected disability(ies) or claimed service-connected disability(ies) cause a veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability(ies) or claimed service-connected disability(ies). After a thorough consideration of the evidence of the record, the Board finds that the evidence is in relative equipoise regarding whether the Veteran's OSA is caused or aggravated by his diabetes through obesity. It has been determined that the Veteran's medication to treat diabetes does cause weight gain and led to his obesity. It also has been determined that obesity is an important risk factor for OSA. The June 2020 VA examiner opined that it would be speculative to comment if the Veteran's OSA was caused by his obesity. As noted in the regulations, the question is not if obesity "caused" OSA, but if obesity was a "substantial factor" in causing his OSA. Based on the medical evidence and the information proffered in medical opinions, a reasonable doubt has arisen regarding whether obesity, which was found to be due to his diabetes (medications) is a substantial factor in causing his OSA, and that his OSA would not have developed but for his obesity. Resolving reasonable doubt in favor of the Veteran, the Board finds that a nexus has been established between his OSA and his diabetes, with obesity as an intermediate step. The criteria for service connection for OSA on a secondary basis have been met. Initial increased rating for service-connected GERD The Veteran's GERD is rated under Diagnostic Codes 7399-7346. Because there is no specific Diagnostic Code for GERD, this disorder is rated by analogy. Specifically, under Diagnostic Code 7346 (Hiatal Hernia), a 10 percent rating is warranted for two or more symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § § 4.114, Diagnostic Code 7346. At a September 2011 VA examination, the Veteran reported taking pantoprazole twice a day to relieve his symptoms, such as abdominal distress. He also had his bed elevated on blocks and slept with three pillows. He did not experience any incapacitating episodes. At the April 2018 Board Hearing, the Veteran testified that he experienced symptoms of stomachache, reflux, heartburn, and regurgitation daily. He also endorsed pain in his shoulder and arm and thought he was having a heart attack. His representative witnessed his having a GERD attack. At the February 2020 VA examination, the symptoms attributed to the Veteran's GERD were characterized as reflux and sleep disturbances caused by esophageal reflux (duration 10 days or more; frequency was 4 or more reoccurrences a year). The examiner noted that the Veteran had a moderate esophageal stricture. The examiner explained that esophageal stricture was a separate condition unrelated to the Veteran's service-connected GERD. After a thorough consideration of the evidence, the Board finds that the Veteran's symptoms have more nearly approximated the criteria contemplated by the 30 percent rating under Diagnostic Code 7346. Throughout the entire initial rating period, the Veteran has experienced episodes of epigastric pain reflux, abdominal distress, regurgitation, substernal pain, and sleep disturbances caused by reflux. The Veteran has reported experiencing these symptoms on a daily basis. The Board finds that the Veteran is competent to report such symptoms. His experiences of GERD attacks depict that his condition is more severe than contemplated by the current 10 percent rating. Thus, resolving all reasonable doubt in favor of the Veteran, he is entitled to a 30 percent rating for the entire initial rating period. However, the Veteran' symptoms do not rise to the level of severity contemplated by the 60 percent rating under Diagnostic Code 7346. The Veteran has never, throughout the rating period, experienced weight loss due to his condition. The medical evidence did not indicate that the Veteran ever had hematemesis or melena with moderate anemia. There were no other serious complications attributable to his condition. The 30 percent rating now assigned adequately contemplates the severity, frequency, and duration of the Veteran's GERD condition. Regarding the finding of moderate stricture of the Veteran's esophagus, which was shown at the February 2020 VA examination, the examiner determined that it was unrelated to his GERD. In support of this, VA treatment records attribute the narrowing of the Veteran's esophagus to a cervical bone spur, metal plate, or osteoarthrosis. See June 2017 VA Medical Treatment Records (CAPRI). Therefore, the Board finds that a separate rating for stricture of the esophagus (Diagnostic Code 7203) is not warranted in this matter. The Board has considered whether the Veteran's GERD warrants a rating higher than the 30 percent evaluation awarded herein under another Diagnostic Code. However, based on the evidence, the Veteran's GERD symptoms are (CONTINUED ON NEXT PAGE) predominantly characteristic of the symptoms contemplated by Diagnostic Code 7346. In sum, the Board finds that, for the entire initial rating period, entitlement to a rating of 30 percent, but no higher, for GERD is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.