Citation Nr: 21065704 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-04 099A DATE: October 27, 2021 ORDER Entitlement to service connection for a gastrointestinal disorder is granted. Entitlement to service connection for a left inguinal hernia is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. REMANDED Entitlement to service connection for an eye disability, including glaucoma, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, a gastrointestinal disorder and a left inguinal hernia had onset during service. 2. The preponderance of the evidence is against finding that OSA began during active service or for many years thereafter, and OSA is not otherwise shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left inguinal hernia have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to May 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO). In May 2017, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ). A transcript of which has been attached to the claim file. In correspondence dated in September 2021, the Veteran was notified that the VLJ who conducted his May 2017 hearing was no longer employed by the Board, and he was given the opportunity to request an additional Board hearing before another VLJ. However, as the Veteran did not respond within 30 days from the date of the September 2021 correspondence, the Board assumes that he did not want another hearing and will proceed accordingly based on the May 2017 hearing transcript already of record, which the undersigned has reviewed in detail. In January 2020, the Board remanded the appeal for additional development. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for a gastrointestinal disability The Veteran seeks service connection for a gastrointestinal disorder, claimed as a stomach condition and ulcer. He asserts that his gastrointestinal complaints had onset in service and remained symptomatic since that time. The Veteran's service treatment records expanding his 20 year military career contain several references to indigestion, gastroenteritis, reflux and irritable bowel, acid indigestion, esophageal pain, complaints of nausea, vomiting, starting in 1986. He was also treated for a duodenal ulcer in November 1990. After service, a private clinician in May 2007 indicated that the Veteran was being treated for GERD. On VA examination in July 2021, the Veteran reported onset of reflux-like symptoms in 1982, as well as epigastric and stomach issues with irregular bowel habits that was reportedly related to the ready-to-eat (MREs) in service. He developed mid-sternal chest wall burning reflux. The Veteran described intermittent dysphagia for solid foods with globus sensation, intermittent nausea and non-bilious vomiting. Laying down in supine position would worsen the waterbrash sensation. The examiner determined that a diagnosis for a stomach disability was not appropriate because the Veteran denied any standard of care treatment with anti-reflux medications and no endoscopic findings were available to confirm a diagnosis of GERD and/or an ulcer. There is no inaction that the Veteran was examined for a gastrointestinal disability, nor does the report reflect that any testing was conducted. A veteran is competent to describe observable symptoms such as gastrointestinal discomfort and pain. See Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board is cognizant that, while the VA examiner provided a negative nexus opinion, that opinion was essentially based on the lack of evidence of clinical testing to confirm a diagnosis of a gastrointestinal condition. However, because there is a current diagnosis of a gastrointestinal disability, GERD, assertions from the Veteran regarding onset of gastrointestinal problems in service, which is documented in the service treatment records, even if for a period following discharge from service the condition was dormant/asymptomatic, the Board finds that the Veteran's competent and credible contentions provide a nexus linking his current gastrointestinal disorder and service, and the balance of positive and negative evidence is in relative equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran's current gastrointestinal disorder and active service. Therefore, service connection for a gastrointestinal disability is granted. 38 U.S.C. § 5107 (b); § 3.102; Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for a hernia The Veteran asserts that he initially became symptomatic for a hernia condition in service as manifested by groin pain and bulging. The Veteran's service treatment records show that in July 1986, the Veteran was thought to possibly have a hernia after heavy lifting. However, on examination no hernia was palpated. An impression of gross hematuria was noted. After service, a December 2000 private treatment note recorded a history of bulging on the left groin area that was initially noticed seven years earlier. Examination showed a left inguinal hernia. No herniation was palpated on the right side. The Veteran subsequently underwent left inguinal hernia repair. In August 2004, the Veteran described a bulge that had been present for approximately four years. He subsequently underwent right inguinal hernia repair. A Hernia DBQ in January 2015, noted a history of inguinal hernia with repairs in 2001 and 2002. The Veteran reported onset of groin pain in service. On VA examination in July 2021, the examiner noted that the Veteran had progressive pain and a reducible bulge formation in his bilateral inguinal regions. However, the Veteran did not get formal diagnosis until after discharge from the military service in 1999. He underwent uneventful inguinal hernia repairs twice in 2001 and 2002. The examiner diagnosed inguinal hernia and opined that the condition was less likely than not related to active military service. The examiner based the opinion on the finding that the service treatment records failed to document any findings consistent with a hernia, and the Veteran did not seek medical treatment for his hernia formation until approximately three years after separation from military service. The Veteran credibly reported onset of bulging and groin pain during service. Jandreau, 492 F.3d 1372, 1377. The evidence shows that he initially sought treatment and was diagnosed with a left inguinal hernia less than two years after discharge from active duty. The Board is cognizant that, a VA examiner in July 2021 provided evidence against the claim. However, the VA examiner based the opinion on the finding that the Veteran did not seek treatment for a hernia until at least three years after service, when in fact the evidence shows that the Veteran initially sought treatment a little over a year after service discharge, and at the time he reported that he initially noticed bulging seven years earlier, during service. As a left inguinal hernia was diagnosed shortly after service and there is credible lay evidence that the condition had onset during service, it is reasonable to conclude that the Veteran's left inguinal hernia initially manifested during service. In resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran's left inguinal hernia had onset during active duty. The Board, thus, finds that service connection for left inguinal hernia is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. 3. Service connection for OSA The Veteran asserts that he developed OSA in service. The Veteran's service treatment records were silent for complaints, diagnosis, or treatment for sleep apnea or sleep problems generally. In several reports of medical history, including in August 1982 and May 1993, the Veteran denied a history of frequent trouble sleeping. Additionally, there is no evidence contemporaneous with service showing complaints or findings consistent with impaired sleep or a diagnosis of OSA. After service, an August 2014 polysomnogram revealed OSA. The Veteran was fitted with a continuous airway pressure (CPAP) machine. Sleep Apnea Disability Benefits Questionnaires (DBQs) dated in October 2014, December 2014 and January 2015, recorded a diagnosis of OSA per sleep study in August 2014. The Veteran reported a history of fatigue and snoring. The Board notes that the first documented evidence of OSA is approximately 15 years after the Veteran's discharge from active duty service. Based on the above, the Board must conclude that OSA did not have its onset during service and has not been continuous since that time. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran has asserted continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service treatment records and post-service treatment records, which fail to document any related complaints until 15 years after discharge from service. See Owens, supra. Accordingly, competent evidence linking OSA to service is needed to substantiate the claim. On the question of a nexus between the Veteran's OSA, initially noted many years after service, and service, the evidence weighs against the claim. On VA examination in August 2021, the examiner noted that the Veteran was diagnosed with mild OSA in 2014. The Veteran attributed his OSA to work shift changes while in the military. He complained of reported daytime sleepiness and persistent fatigue from the rigorous military duties. Reportedly, his wife heard Veteran snoring loudly, which led him to undergo a sleep study in 2014, which ultimately diagnosed mild OSA. Following a review of the claims file and an examination of the Veteran, the examiner opined that OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based the opinion on the fact the Veteran was diagnosed with OSA in 2014 and was separated from service in 1999, which indicated a separation timeframe of 15 years. In addition, the Veteran's claimed condition of irregular sleep cycle being the etiology of sleep apnea was not supported by the current evidence-based medical literature. The Board finds the opinion of the VA examiner in August 2021 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred OSA in service. The examiner's findings were based on a review of the evidence, including the service and post-service treatment records, which did not substantiate a finding that the Veteran's OSA initially manifested in service. The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that the Veteran's OSA, which was not shown in service, and was initially noted in 2014, was not related to service. The examiner cited to the medical literature and specifically addressed lay statements submitted in support of the claim. The opinion contains an internal logic consistent with the known facts, as well as with other evidence of record. The Board finds this opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the Veteran's OSA to service. The Board has considered the statements from the Veteran asserting that OSA had onset during active duty service. The Veteran is certainly competent to report as to the observable symptoms, experiences and their history, but the ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Therefore, while the Veteran may have had sleep and snoring problems during active duty service, the Veteran has not been shown to be competent to state that these were symptoms of OSA. The Board finds that the specific, reasoned opinion of the VA examiner in August 2021 is of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which she relied to form the opinion, and the examiner provided a rationale for the conclusion reached. For the reasons set forth above, the Board finds that the most probative evidence weighs against a finding that the Veteran's OSA is related to service. Thus, service connection for OSA is denied. As such, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for an eye disability, including glaucoma, is remanded. The Veteran seeks service connection for an eye disability. The Veteran's service treatment records reflect that in May 1993 he was evaluated for refractive error, rule out glaucoma. A post-service treatment note in September 2005 reflects that glaucoma was suspected. The post-service medical evidence reflects a diagnosis of bilateral glaucoma. Pursuant to the January 2020 the Board remand directives, a VA examination addressing the Veteran's contentions was obtained in July 2021. Following an examination of the Veteran and a review of the claims file, the VA examiner diagnosed primary open angle glaucoma, as opposed to traumatic glaucoma, which was not associated with trauma, therefore it was unrelated to any trauma experienced in service. However, it remains unclear whether the Veteran's glaucoma may have initially manifested in service. Therefore, the Board finds the opinion does not provide an adequate basis to reach a decision on the issue of entitlement to service connection and an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his eye disability, and complete and return an appropriate authorization form for each treatment provider identified. After obtaining the completed release forms, request all identified pertinent medical records (if any). If possible, the Veteran (or his representative) should get these records and submit them himself to expedite the case. This would help the Board greatly. 2. Submit the claims file to the July 2021 VA examiner, if available, for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The claims file, including a copy of this remand, should be made available to the examiner, who should indicate a review of the file in the examination report. Examination of the Veteran is not required unless the examiner determines that one is necessary to provide a reliable opinion. If an examination is required, all indicated tests and studies should be completed. The examiner is asked to determine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's glaucoma had onset during service or is otherwise related to any aspect of the Veteran's service. Please explain why or why not. The examiner must comment on the service treatment records which in May 1993 documented a diagnosis of rule out glaucoma. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.