Citation Nr: 21068924 Decision Date: 11/16/21 Archive Date: 11/15/21 DOCKET NO. 12-20 727A DATE: November 16, 2021 ORDER Service connection for an intestinal disorder, to include gastroenteritis and diverticulitis, is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. Service connection for obstructive sleep apnea (OSA) is denied. REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is remanded. FINDINGS OF FACT 1. An intestinal disorder, to include gastroenteritis and diverticulitis, was not present in service or for years thereafter, and is not etiologically related to service. 2. GERD was not present in service or for years thereafter, and is not etiologically related to service. 3. OSA was not present in service or for years thereafter, and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an intestinal disorder, to include gastroenteritis and diverticulitis have not been met. 38 U.S.C. § 1101, 1131, 5107; 38 C.F.R. § 3.102, 3.303. 2. The criteria for service connection for GERD have not been met. 38 U.S.C. § 1101, 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. § 1101, 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to April 1978. A hearing was held before the Board in October 2013. A transcript of the hearing has been associated with the Veteran's claims file. The Board previously remanded this claim in January 2015, March 2016, February 2017, February 2018, and August 2019, for further development. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2019). The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5; however, the Secretary of VA has specifically indicated that DSM-IV is still to be applied by the Board for claims pending before it. 79 Fed. Reg. 45094 (Aug. 4, 2014).) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for an intestinal disorder, to include gastroenteritis and diverticulitis 2. Service connection for GERD The Veteran contends that he has a current intestinal disorder and GERD, that both developed during active military service. He reported that his gastrointestinal symptoms started during service. See October 2013 Board hearing transcript, April 2016 VA examination report, October 2018 VA examination report, and January 2020 VA examination report. An intestinal disorder and GERD were not diagnosed until many years after service, and there is no competent evidence to establish that any currently diagnosed intestinal disorder or GERD are due to any event or incident of the Veteran's period of active duty. Service treatment records show that during his May 1974 entrance examination, the Veteran reported being hospitalized for "stomach troubles." The examiner specified that in September 1973, he was observed in a private hospital for several hours for complaints of right lower quadrant pain which radiated to the right upper quadrant. He was sent home with medication after the pain subsided. In September 1975, he complained of vomiting, nausea, upset stomach, and stomach cramps. He was diagnosed with a viral syndrome. During his June 1978 US Naval reserve physical evaluation, he indicated a history of frequent indigestion, and stomach, liver, or intestinal trouble. He was assessed with a nervous stomach. He denied any gastrointestinal (GI) problems at the time of his reservist examination in March 1979. In May 1981, he reported diarrhea 4-5 times/day since arriving for ACDUTRA. He denied any GI problems during physicals in February 1982, October 1983, July 1985, or January 1988. Post-service treatment records show the Veteran was first diagnosed with an intestinal disorder many years after his discharge. Treatment records from the VA Medical Center in San Antonio, Texas show treatment in urgent care in May 2006 for chronic abdominal pain related to a hernia. He was treated for gastroenteritis and colitis in 2007, for diarrhea and diverticulosis of the colon in 2009, and for diarrhea and diverticulosis from 2011-2012. March 2013-December 2013 treatment records show treatment for gastroenteritis. April 2014 emergency department records show a diagnosis of gastroenteritis. A CT scan in March 2015 showed evidence of diverticulosis with possible gastroenteritis, and diverticulosis without diverticulitis. He was diagnosed with diverticulosis of the colon with chronic active colitis on VA examination in July 2016. He was diagnosed with chronic colitis due to diverticular disease and status post resection of colon polyp on VA examination in October 2018. Post-service treatment records from the VA Medical Center in San Antonio show that he was first diagnosed with GERD in August 2007. At that time, he reported symptoms of heartburn after eating spicy foods for 1-2 months. However, the evidence does not indicate that the currently diagnosed intestinal disorder or GERD is due to any event or incident of the Veteran's period of active duty. In this regard, the Veteran was afforded VA examinations in April and July 2016, November 2017, and October 2018 which the Board found inadequate. See February 2017, February 2018, and August 2019 Board remand. In accordance with the Board's August 2019 remand directives, another VA medical opinion was submitted in January 2020. The examiner opined that the claimed intestinal condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Initially, the examiner noted that, as the Veteran was not currently diagnosed with gastroenteritis, there was no diagnosis on which to render an opinion regarding that disorder. With regard to the diagnosed diverticulitis, the examiner noted that there is no evidence of a chronic disorder of gastroenteritis, diverticulitis, or other gastrointestinal (GI) disorder while in service or during reserve service. The examiner also noted that the Veteran's lay statements contradict his numerous denials of GI symptoms from his military medical evaluations in February 1982, October 1983, July 1985, and January 1988. The Veteran had one episode of a "viral" GI disorder on active duty, then diarrhea in 1981, and it is unclear if it occurred prior to his temporary activation or not, which also resolved, and lastly, on his June 1978 US Naval Reserve physical evaluation, he complained of frequent indigestion and stomach, liver, or intestinal trouble and the examiner noted "Nervous stomach," which also resolved by March 1979. The examiner concluded that based on all available information, the Veteran's chronic abdominal pain began sometime after 1988, likely around 2005, and he was found to have chronic diverticular disease causing the pain, which continues intermittently currently. His testimony of GI upset during service is consistent with his admitted large and frequent intake of alcohol. This upset resolved after active duty, as is supported by his reserve/military medical evaluations. There is no nexus formed between military service and his current disorder. The examiner also opined that the Veteran's GERD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran reported during his October 2013 Board hearing that he had been taking a medicine for his "gastritis" since getting out of the military- a generic which was transcribed as "Lexium," and that he was prescribed Ranitidine for his GERD, which was diagnosed in 2007, which he still currently uses. The examiner also noted that per review of service treatment records for both active and reserve service, the Veteran had upper GI symptoms that fully resolved during his reserve time and per his military physicals, afterward through 1988. There is no evidence of a diagnosis of GERD prior to 2007. His hearing testimony is contradicted by his statements on his periodic medical evaluations during and after his US Naval reserve time, and are inconsistent with the available medical records. The examiner explained that, as the available medical records are consistent over time (military and VA), he placed more weight on them than the Veteran's recollection of events during the hearing. As such, the examiner concluded that the Veteran's GI upset in service was consistent with large, frequent alcohol intake, as he acknowledged, and his current GERD was likely caused by the usual causes of GERD, such as being overweight, eating foods that cause irritation, etc., and not due to an exposure or disorder during military service. The examiner opined that the Veteran's GI upset in service less likely than not caused his current GERD disorder, which started in 2007. No nexus with military service is created. The Board notes that service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of evidence of a diagnosed intestinal disorder or GERD during active duty or at discharge and the gap of many years between service and the first notation of an intestinal disorder or GERD, the Board does not find the Veteran's accounts of symptoms of an intestinal disorder or GERD since service to be credible. As such, the Board finds the January 2020 VA examiner's opinion is supported, and another examination is not necessary. There is no evidence, VA or private, which indicates that the Veteran's currently diagnosed intestinal disorder or GERD may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of an intestinal disorder or GERD, the Board notes that this passage of time weighs significantly against a finding of direct service connection for an intestinal disorder or GERD. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his intestinal disorder and GERD are due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed intestinal disorder or GERD and his active service or events therein, as it would require medical expertise to say that the current intestinal disorder or GERD, identified many years after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his currently diagnosed intestinal disorder or GERD. 38 C.F.R. § 3.159 (a)(1), (2) (2019). There is no competent evidence relating the Veteran's current intestinal disorder or GERD to any event in his active service. Absent such evidence, the Veteran's claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 3. Service connection for obstructive sleep apnea (OSA) The Veteran contends that his currently diagnosed OSA is related to service. Specifically, he contends that he had problems sleeping during service, and experienced anxiety/nervousness and insomnia, as well as awakening gasping for air in service. He reported that he reported his sleeping difficulties in service, but was not given any help. He also reported drinking excessive alcohol to help him sleep. See March 2019 statement from the Veteran and October 2013 Board hearing transcript. OSA was not diagnosed until many years after service, and there is no competent evidence to establish that the currently diagnosed OSA is due to any event or incident of the Veteran's period of active duty. Service treatment records show on a June 1978 US Navy physical evaluation, the Veteran reported frequent trouble sleeping, and the examiner noted "intermittent insomnia." He also reported frequent trouble sleeping on military physicals in February 1982, October 1983, July 1985, and January 1988. Post-service treatment records show the Veteran was first diagnosed with sleep apnea many years after his discharge. Following a sleep study in May 2010, conducted due to complaints of loud snoring and feeling sleepy during the day, the Veteran was diagnosed with severe OSA. He was diagnosed with OSA again on VA examination in October 2018. However, the evidence does not indicate that the currently diagnosed OSA is due to any event or incident of the Veteran's period of active duty. In this regard, the Veteran was afforded VA examinations in April and July 2016, November 2017, and October 2018 which the Board found inadequate. See February 2017, February 2018, and August 2019 Board remand. In accordance with the Board's August 2019 remand directives, another VA medical opinion was submitted in January 2020. The examiner opined that the claimed OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner concluded that the Veteran appears to have had drug (alcohol) induced obstructive sleep apnea during service, which resolved, presumably because he was no longer drinking excessive alcohol when he was no longer on active duty. Eventually he developed OSA due to another cause, most likely due to being overweight over multiple years after military service, which is not temporary, as is drug-induced OSA (unless there is weight loss of course). The examiner noted that the sleep apnea symptom of awakening gasping for air is well-documented to be caused by not only obstruction of the airway by enlarged tissue, but also by excessive sedation, such as from alcohol, which causes airway obstruction by relaxation of oro-pharyngeal muscles. So, likely he did have alcohol-induced OSA. Additionally, alcohol is well-known to cause sleep disturbances not related to airway obstruction, from its drug effects. The examiner also noted that the Veteran reported multiple times on his successive military periodic medical evaluations in 1982, 1983, 1985, and 1988, that his sleep symptoms had resolved. The examiner reasoned that the two causes of OSA are not the same and clearly, the Veteran's likely alcohol-induced OSA during service is not causing his current OSA. There is no nexus created with military service. The Board notes that service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of evidence of a diagnosis of sleep apnea during active duty or at discharge and the gap of many years between service and the first notation of sleep apnea, the Board does not find the Veteran's accounts of symptoms of OSA since service to be credible. As such, the Board finds the January 2020 VA examiner's opinion is supported, and another examination is not necessary. There is no evidence, VA or private, which indicates that the Veteran's current OSA may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of OSA, the Board notes that this passage of time weighs significantly against a finding of direct service connection for OSA. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his OSA is due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed OSA and his active service or events therein, as it would require medical expertise to say that the current OSA, identified many years after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his current OSA. 38 C.F.R. § 3.159 (a)(1), (2) (2019). There is no competent evidence relating the Veteran's current OSA to any event in his active service. Absent such evidence, the Veteran's claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. REASONS FOR REMAND Service connection for an acquired psychiatric disorder, to include PTSD and depression is remanded. The Veteran contends that he has a current psychiatric disorder, related to traumatic events in service. See April 2011, November 2011, and April 2019 statement in support of claim, and October 2013 Board hearing transcript. He also reported on VA examination that he experienced depressive symptoms as a child, prior to military service, and recurrent episodes of depression during military service, due to poor performance and negative feedback from peers and supervisors. See April 2016 VA examination report. Initially, the Board notes that the Veteran's reported in-service stressors have never been verified. See January 2012 VA Memorandum, September 2017 VA Final Attempt Letter, October 2017 VA Memorandum, and March 2020 DPRIS Response Letter. Furthermore, the Veteran has never been diagnosed with PTSD. As such, service connection for PTSD is not warranted. A Veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304 (b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1); 38 U.S.C. §§ 1111, 1137. When no preexisting condition is noted upon entry, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. If the presumption of soundness applies, to rebut the presumption of soundness under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Id. at 1096; 38 U.S.C. § 1111. Service treatment records do not show complaints, treatment or diagnosis related to a psychiatric disorder during active duty or at discharge. Notably, a May 1974 enlistment examination documents normal psychiatric functioning with no reported history of depression, anxiety, excessive worry, sleep disturbance, or nervous trouble of any sort. The Veteran indicated no history of psychiatric diagnosis or treatment, nor had he received any type of counseling prior to military service. The Board thus finds that there is no clear and unmistakable evidence that a psychiatric disorder, including depressive disorder, pre-existed service, so the presumption of soundness applies. In this case, other than the Veteran's own statements, there is no documentation of a psychiatric disorder prior to service. The evidence of record does not meet this high evidentiary burden, and therefore, as a matter of law, the presumption of soundness cannot be rebutted. Therefore, the presumption of soundness applies, and the claim is for service connection, not aggravation. Post-service medical records show diagnosis and treatment for other psychiatric disorders, including alcohol use disorder and depression, many years after service. The medical evidence of record contains competent evidence of a current psychiatric disorder. The Veteran's reports of in-service back psychiatric symptoms and a continuity of symptomatology provide evidence that a current psychiatric disorder may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was afforded VA examinations with medical opinions in April and July 2016 and November 2017, which the Board found inadequate. See February 2017 and February 2018 Board remand. In accordance with the Board's February 2018 remand directives, the Veteran was afforded a VA PTSD examination in October 2018. The examiner noted that the Veteran's symptoms did not meet the diagnostic criteria for a diagnosis of PTSD. However, the examiner did diagnose persistent depressive disorder with anxious distress, which he opined clearly and unmistakably preexisted the Veteran's military service, and was not aggravated during service. As noted above, the Board finds that the evidence of record does not show that the Veteran's depressive disorder preexisted military service. The examiner did not provide an opinion regarding whether the diagnosed depressive disorder was directly related to the Veteran's active military service. As such, the Board finds the opinion incomplete and therefore, inadequate for evaluation purposes. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds that a new VA examination and opinion is needed to determine the etiology of the currently diagnosed acquired psychiatric disorder. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, send the Veteran's claims file to a VA psychologist or physician who has not reviewed the claims file before, to determine the nature and etiology of any currently diagnosed acquired psychiatric disability, including depressive disorder. The claims folder, including a copy of this remand, should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Based upon a review of the relevant evidence and history provided by the appellant, the examiner should identify all current acquired psychiatric diagnoses, and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current acquired psychiatric disability, including depressive disorder, originated while the Veteran was serving on active duty or is otherwise related to a disease or injury in service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the above and any other development deemed necessary, review the expanded record, and readjudicate the remaining issue on appeal. If the claim remains denied, the appellant and his attorney should be furnished an appropriate supplemental statement of the case, afforded an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.