Citation Nr: 21072656 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-44 855 DATE: December 3, 2021 ORDER Service connection for gastroesophageal reflux disease (GERD) is denied. Service connection for insomnia is denied. REMANDED Service connection for spinal stenosis is remanded. Service connection for sleep apnea is remanded. Service connection for erectile dysfunction is remanded. Service connection for headaches, claimed as migraines, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's GERD began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's insomnia began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for insomnia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Air Force from November 1983 to July 1992. This matter was previously before the Board in May 2016 when the Veteran's claims for service connection for GERD, insomnia, spinal stenosis, erectile dysfunction, headaches, and sleep apnea were remanded for further development. The Board is satisfied that for the claims of GERD and insomnia, there has been at least substantial compliance with the remand directives. The remaining issues require further remand. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). GERD The Veteran contends that his GERD is due to his eating habits during basic training which led to heartburn and reflux. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records are silent for complaints of GERD or related symptoms. In January 2021, the Veteran was afforded a VA examination where he was diagnosed with GERD. At the examination, the Veteran reported an onset date of 1994. The examiner opined, after reviewing the Veteran's claims file, that his GERD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because the Veteran's GERD began after service and there were no in-service complaints of GERD or related symptoms. The earliest report of GERD symptoms was in May 2010 where the Veteran indicated that for over a year, he has frequently needed to clear his throat. In a January 2012 VA treatment note, his physician noted mild interarytenoid swelling and erythema suggestive of GERD as well as active reflux changes with redness and swelling. A November 2014 VA treatment note indicates that the Veteran underwent a gastric biopsy which showed esophageal spasm and mild antral gastritis. The note also reports symptoms of dysphagia and a history of reflux. The Board concludes that, while the Veteran has a diagnosis of GERD, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with GERD until January 2012, years after his separation from service. While the Veteran is competent to report having experienced symptoms of heartburn and reflux intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of GERD. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the January 2021 VA examiner opined that the Veteran's GERD is not at least as likely as not related to an in-service injury, event, or disease. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board places more weight in the medical evidence of record in this case and finds that the preponderance of the evidence weighs against finding that the Veteran's eating habits during service, or his military service generally, caused his GERD. Therefore, service connection for GERD is denied. Insomnia The Veteran contends that his insomnia is related to his active-duty service. Specifically, he indicates that he was stationed in a position where flying was a 24-hour operation. He reports an onset of sleep disorder symptoms during service because he never felt rested and even today reported that the slightest noises will prevent him from falling asleep. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records are silent for complaints of a sleep disorder or insomnia. On his March 1992 Separation Report of Medical History, the Veteran specifically denied frequent trouble sleeping. Notably, the Veteran did report a back condition and indicated the onset of the condition. At a January 2021 VA examination, the Veteran was diagnosed with insomnia disorder. The Veteran reported that presently he sleeps about four hours a night and it takes him a while to go to sleep. Once he does sleep, the Veteran reports sleeping for about three hours, wakes for a while, and gets another hour of sleep on a nightly basis. The Veteran reports having trouble sleeping for 15 to 20 years. The examiner opined that the Veteran's insomnia was less likely than not (less than 50 percent probability) related to his military service because the Veteran did not have any symptoms of insomnia during service and reported an onset date after his discharge from military service. A May 2011 VA treatment note shows that the Veteran denied a sleep disorder. A January 2012 VA treatment note indicates that the Veteran sought treatment for sleeping problems, excessive daytime sleepiness, and falling asleep in inappropriate circumstances occasionally. A September 2013 VA treatment record indicates a diagnosis of insomnia. The Board concludes that, while the Veteran has a current diagnosis of insomnia, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of insomnia began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with insomnia until September 2013 and reported sleep problems for the first time in January 2012. Both dates are several years after the Veteran's separation from service. At separation from service as well as in May 2011, the Veteran specifically denied having a sleep disorder. While the Veteran is competent to report having experienced symptoms of difficulty falling asleep consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of insomnia. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a nexus determination in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Additionally, though the Veteran now reports that he had sleep problems during service, these reports are inconsistent with his reports at separation from service. Consequently, the Board gives more probative weight to the January 2021 examiner and VA medical records. Further, the January 2021 VA examiner opined that the Veteran's insomnia is not at least as likely as not related to his military service. The rationale was that the Veteran's discharge from the Air Force in 1992, which was at most eight years prior to his reported onset of insomnia. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, service connection for insomnia is denied. REASONS FOR REMAND 1. Service connection for spinal stenosis is remanded. In December 2019, the Veteran was afforded a VA examination when he was diagnosed with intervertebral disc syndrome (IVDS), anterior cervical diskectomy and fusion, and cervical radiculopathy of the left upper extremity. The Veteran reported that these conditions began in 1989 and indicated that he had a gradual onset of neck pain during service. The examiner opined that these conditions were less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's military service because there was no evidence of neck pain or neck conditions during service and medical records indicate an onset of 2006, many years after military service. The examiner opined that there is insufficient evidence to support that the anterior cervical diskectomy and fusion, IVDS, and cervical radiculopathy of left upper extremity are due to service. Unfortunately, the Board finds that this opinion is inadequate, and a remand is required because the examiner failed to consider and analyze the relevant evidence of record, as well as the Veteran's lay statements. In fact, the VA examiner did not adequately address the Veteran's lay statements reporting a gradual onset of cervical spine symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Therefore, the Board finds that a new VA etiological opinion is warranted. 2. Service connection for sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea is related to his active-duty service. Specifically, he indicates that while he was on active duty his roommates told him that whenever he slept, he would snore loudly and wake up gasping to catch his breath. See August 2017 Form 9. In January 2021, the Veteran was afforded a VA examination where he was diagnosed with obstructive sleep apnea. The Veteran reported that this condition began in approximately 2007 to 2009. He indicated that his wife told him that he would stop breathing during the night and snored badly. In 2009, the Veteran was diagnosed with severe sleep apnea. The examiner opined that the Veteran's sleep apnea is less likely than not (less than 50 percent probability) related to his active military service. The examiner relied on the fact that the Veteran did not have complaints of sleep apnea during service and the fact that he was diagnosed significantly after his discharge from service. Like the medical opinion provided for spinal stenosis, the Board finds that this medical opinion is inadequate for rating purposes because the examiner failed to consider and analyze the relevant evidence of record, as well as the Veteran's lay statements. In fact, the VA examiner did not adequately address the Veteran's lay statements asserting that his sleep apnea symptoms began during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Therefore, the Board finds that a new VA etiological opinion is warranted for this issue as well. 3. Service connection for erectile dysfunction is remanded. The Veteran was afforded a VA examination in January 2021 when he was diagnosed with erectile dysfunction. The Veteran reported that this condition began in the 2000s and that a little over 20 years ago he noticed a decline in function. The examiner indicated on the Disability Benefits Questionnaire (DBQ) that the etiology of this condition was the Veteran's hypertension and medications he is currently taking. The examiner then opined that this condition was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's military service since this condition was diagnosed and treated many years after military service. A lay statement from the Veteran's wife indicates that the Veteran began suffering from erectile dysfunction after beginning his hypertension medication regime in the 1990s. See February 4, 2021 Statement in Support of Claim. The Veteran, as of a January 11, 2021 rating decision, is service connected for hypertension. Therefore, an addendum opinion is needed to obtain a secondary service connection opinion as to whether the Veteran's erectile dysfunction is the result of his service-connected hypertension. Additionally, the Veteran reports an onset of 2000, however, the examiner indicates an onset of 2013. The onset date of the Veteran's condition should be determined and elaborated upon in the opinion provided. A remand for addendum opinion to address secondary service connection is required. 4. Service connection for headaches, claimed as migraines, is remanded. The Veteran seeks service connection for headaches which he asserts began during active service but did not recall a specific precipitating event. See December 2019 VA examination. In his 2017 substantive appeal to the Board (Form 9), the Veteran indicated that he believed his headaches were the result of a head injury he incurred during service. In December 2019, the Veteran was afforded a VA examination when he was diagnosed with migraine headaches. At this examination, the Veteran indicated that his headaches began during active-duty service but does not recall a specific onset. He reported headaches occurring three to four times per week on average. The examiner opined that the Veteran's headaches were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's service treatment records did not show treatment or complaints for headaches, the Veteran denied frequent or severe headaches at separation in May 1992, and the first private treatment records showing complaints of headaches was in 2010. As a result, the examiner opined that there was insufficient evidence to support that the Veteran's current migraine headaches are due to service. Subsequently, an addendum opinion was obtained in January 2021 to determine whether the Veteran's headaches could be due to the Veteran's in-service head injury. The examiner opined that the Veteran's service treatment records showed a May 1984 laceration to his right forehead that required sutures, and that there was no evidence of any traumatic brain injury or headaches following the injury. As a result, coupled with the denial of headaches at separation, the examiner opined that the Veteran's migraine headaches were less likely than not related to his in-service head injury because his headaches would have likely appeared following the injury and continuing to be chronic. Private treatment records from 2010 to 2015 show various complaints of headaches. Specifically, a May 2011 private treatment note shows that an MRI of the Veteran's cervical spine found pathology in several vertebrae. The Veteran's private physician indicated that it was his opinion that this cervical spine condition was the source of his headaches. A July 2015 the private treatment note opined that the Veteran's headaches may be due to his chronic sinusitis. Given that the Veteran's claim for service connection for a cervical spine condition is remanded, and the potential for secondary service connection to this condition and the Veteran's headache condition, a remand is required for an addendum opinion. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion, or schedule the Veteran for a physical examination if necessary, where the examiner should specifically answer the following questions regarding his spinal stenosis: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's intervertebral disc syndrome (IVDS), anterior cervical diskectomy and fusion, and cervical radiculopathy of the left upper extremity is due to his work as a crew chief during active duty? Why or why not? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's intervertebral disc syndrome (IVDS), anterior cervical diskectomy and fusion, and cervical radiculopathy of the left upper extremity is due to his work in-service head injury? Why or why not? The examiner should specifically address the Veteran's lay contentions from his August 2017 Substantive Appeal to the Board (Form 9). 2. Obtain an addendum opinion, or schedule the Veteran for a physical examination if necessary, where the examiner should specifically answer the following question regarding the Veteran's sleep apnea: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its onset during the Veteran's military service or is otherwise related to his service? Why or why not? Specifically, the examiner should address the Veteran's reports of snoring and gasping for breath during service from his August 2017 Form 9. 3. Obtain an addendum opinion, or schedule the Veteran for a physical examination if necessary, where the examiner should specifically answer the following question regarding his erectile dysfunction: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was caused or aggravated (made worse) by his service-connected hypertension? Why or why not? Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The VA examiner must provide separate findings and rationales relating to causation and aggravation. 4. Obtain an addendum opinion, or schedule the Veteran for a physical examination if necessary, where the examiner should specifically answer the following question regarding his headaches: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's headaches were caused or aggravated (made worse) by his cervical spine condition, to include intervertebral disc syndrome (IVDS), anterior cervical diskectomy and fusion, and cervical radiculopathy of the left upper extremity? Why or why not? Specifically, the examiner should address the Veteran's private treatment records from May 2011 and the associated MRI findings from that visit. See Medical Treatment Records Non-Government Facility received February 24, 2020 pages 8 10. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The VA examiner must provide separate findings and rationales relating to causation and aggravation. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.