Citation Nr: 21073774 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-05 199 DATE: December 10, 2021 ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability. 2. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD). REMANDED 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is remanded. 2. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to November 1968.This case is before the Board of Veterans' Appeals (Board) on appeal from February 2015 and December 2018 rating decisions. The February 2015 rating decision denied service connection for obstructive sleep apnea and GERD. The Veteran's Notice of Disagreement (NOD) was received in January 2016. During the pendency of the appeal, the RO issued a December 2018 rating decision granting service connection for GERD, and assigned a noncompensable rating, effective from December 19, 2013. On the same day, the RO issued a Statement of the Case (SOC) addressing the denial of service connection for obstructive sleep apnea. The Veteran submitted a timely VA Form 9 following the December 2018 SOC that was received at the RO in February 2019. In March 2019, the Veteran filed a NOD with the initial noncompensable rating assigned for the service-connected GERD. The RO issued a SOC in October 2019. The Veteran subsequently submitted a VA Form 9 in November 2019. Notably, in the October 2010 rating decision, the Veteran was granted service connection for diabetes mellitus associated with herbicide exposure with a 20 percent evaluation. In the May 2011 rating decision, the Veteran was granted an earlier effective date of June 10, 2009for service connection of diabetes mellitus Type II, evaluated as 20 percent disabling. The Veteran filed a claim in December 2013, and in a December 2018 rating decision, the Veteran's GERD, also claimed as Schatzki's ring and Barrett's esophagus, was granted with a noncompensable evaluation effective December 19, 2013. The Veteran appealed the initial disability rating for his GERD condition, and it is now before the Board. Currently, the Veteran is assigned a single rating under DC 7913 for diabetes mellitus Type II with mild nonproliferative diabetic retinopathy, cataracts bilaterally, and GERD, as 20 percent disabling from June 10, 2009 and 20 percent from December 19, 2013. After readjudication of this appeal, the Veteran's conditions shall be separately rated, as these conditions are separate and distinct, and warrant ratings under separate DCs. This matter was previously remanded by the Board in March 2020. As will be discussed below, the Board finds additional VA examinations and opinion are necessary. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is remanded. As noted in the Board's March 2020 remand, the Veteran contends that his claimed obstructive sleep apnea is related to active service, to include as secondary to his service-connected diabetes mellitus and GERD. In fact, in a February 2019 correspondence, the Veteran stated that his diabetes aggravates his GERD which aggravates his sleep apnea. On remand, the Board requested a VA examination and opinion to address the secondary theory of service connection for sleep apnea as it relates to GERD. A March 2020 VA examination and opinion was furnished. However, the Board finds additional examination and opinion warranted, as facts relied upon in the examination and opinion are in question. The examiner opined that it is less likely as not that the Veteran's sleep apnea is caused or aggravated by his service-connected GERD. The examiner's rationale included, "Review of medical record shows that the veteran's OSA was diagnosed on 2 / 20 / 2008. Review of medical record shows that the Veteran's GERD was diagnosed in May 2009. Thus, the Veteran's GERD was diagnosed after his OSA and thus is less likely as not (less than 50 percent probability) that the Veteran's obstructive sleep apnea is caused by his service-connected GERD." As for aggravation of the Veteran's sleep apnea due to GERD, the examiner found no aggravation in the Veteran's sleep apnea condition, noting that he was diagnosed in February 2008 with very mild sleep apnea and that his sleep apnea is well controlled with CPAP. The examiner explained that records show that the Veteran does not use the CPAP daily as advised and that such symptoms resulting are from his own will and unrelated to his GERD. Moreover, the examiner noted that VA medical records note that the Veteran's CPAP settings show reduced settings from when he was first diagnosed and that there is no objective evidence to show an increase in severity. However, in a May 2020 correspondence, the Veteran asserts that the VA examination and opinion are inadequate, as he states that the VA examiner failed to consider objective evidence of worsening and failed to consider the private examiner's opinion that his sleep apnea is aggravated by his GERD. The Veteran asserts that the examiner failed to consider his CPAP pressure settings as available and that she perhaps read his CPAP pressure settings wrong. The Veteran noted a February 2008 prescription for a CPAP set at 5 cm of pressure, and stated that a provided photo of his CPAP setting shows an increase to 11.7 cm from the original 5 in 2008. The Veteran further states that he has never stopped using his CPAP and states that he used it 133/136 days, not using it only when he went away for the weekend, but that his current report shows usage 90/90 days with a pressure increase of 11.3 cm. On remand, the Board requests an additional VA examination and opinion. Specifically, the examiner is directed to consider and address the medical literature and private opinions of record and is to clarify whether the Veteran's sleep apnea is aggravated by the Veteran's service-connected disabilities, to include his GERD and diabetes type II. The examiner is to consider the CPAP reports and readings. The examiner should directly respond to the Veteran's allegations of previously incorrect readings and assertions of objective severity in condition noted by the increase in CPAP pressure over time. 2. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) is remanded. As noted in the Board's previous remand, the Veteran contends that his service-connected GERD warrants a separate, initial compensable disability rating. In the March 2019 notice of disagreement (NOD), the Veteran stated that without taking medication for his GERD he experiences persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by shoulder pain, productive of considerable impairment of health. He stated that his medication helps, it does not totally relieve the symptoms and issues. He stated that his GERD has become so severe that strictures and irreversible Barrett's Esophagus have developed and that since filing his claim he has doubled his medication, made lifestyle and dietary changes, and continues to have issues which have increased in severity since December 2013. He stated that he has weekly heartburn, sometimes with chest pain, laryngopharyngeal reflux, weekly hoarseness, and difficulty swallowing, with regurgitation of sour materials. He indicated experiencing a pressure-like sensation, shortness of breath, and the inability to swallow food, liquids, or saliva and have lots of drooling. He stated that his stricture is moderate and that at least 4 times per year his wife is forced to perform the Heimlich maneuver to dislodge food when he cannot regurgitate. In the November 2019 VA Form 9, the Veteran stated that his GERD rating does not consider the effects of Schatzki's ring and Barrett's esophagus. He stated that they cannot be controlled with medicine and as a result cause difficulty swallowing. They have been dilated several times to improve but not eliminate the difficulty swallowing. In response to the Board's remand, the Veteran was afforded a VA examination in March 2020. The examiner found the Veteran's GERD to be well controlled and reported that there is no objective evidence to support any symptoms being reported by the Veteran, as there is no objective evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by shoulder pain, productive of considerable impairment of health. However, the Veteran asserts that there is objective evidence to support his asserted symptoms. See May 2020 Correspondence. In fact, the Veteran states that there is objective evidence of current stricture as there is evidence that shows that he had several recurring strictures dilated with the most recent one being in May 2018 to improve his ability to swallow food. Moreover, the Veteran asserts that the VA examiner failed to consider the record and his entire disability picture and instead focused on his symptoms that day. The Veteran's explained that his March 13, 2020 statement that he felt fine, which the examiner referred to in his opinion, was an email that was sent regarding a change of his upcoming appointment because of coronavirus, since the VA was not treating his GERD other than providing medication. Last, the Veteran asserts that the VA examiner failed to consider the symptoms and effects of GERD on his daily life without considering the ameliorative effects of medication. The Court has held that "[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication...the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication." As Diagnostic Code 7346 does not contain an explicit statement indicating how the Board should treat the ameliorative effects of medication on the Veteran's GERD, the Board may not deny entitlement to a higher disability rating based on the relief provided by medication. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Therefore, upon remand, the VA examiner is directed to report on the severity of the Veteran's GERD, and to the extent possible, attempt to elicit information regarding the severity, frequency, and duration of symptoms without considering the ameliorative effects of his medications. As the Veteran asserts that his condition and symptoms are worse than reflected in the most recent VA examination, a remand is necessary to ensure that the record contains evidence of the current severity of the Veteran's disability and contains an accurate depiction of the Veteran's disability picture. For these reasons, the appeal must be remanded for the AOJ to schedule a new VA examination and readjudicate the claim. The matters are REMANDED for the following action: 1. Ensure that the Veteran is scheduled for a VA examination regarding his obstructive sleep apnea. The examiner must review the claims file in conjunction with the examination, to include the private medical opinions and medical research. a.) The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea is caused by his service-connected medical conditions, to include GERD. b.) The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea is aggravated by his service-connected medical conditions, to include GERD. The examiner must consider and address the medical research and private medical opinions of record indicating a possible relationship between obstructive sleep apnea and diabetes. See December 2013 Correspondence from D.P.K, M.D.; September 2014 Medical Literature (submitted three separate articles); September 2014 Letter from D.K., M.D.; October 2014 Correspondence with Medical Literature. The examiner must consider and address the Veteran's assertions that his CPAP pressure settings indicate aggravation of his sleep apnea. The Veteran noted a February 2008 prescription for a CPAP set at 5 cm of pressure and stated that a provided photo of his CPAP setting shows an increase to 11.7 cm from the original 5 in 2008. See May 2020 Correspondence. The examiner must further consider and address the Veteran's assertions that he has never stopped using his CPAP and states that he used it 133/136 days, not using it only when he went away for the weekend, but that his current report shows usage 90/90 days with a pressure increase of 11.3 cm. See May 2020 Correspondence. The examiner must support any opinion rendered with a detailed rationale. If the examiner cannot provide the above opinion, the examiner is advised that he/she must explain why the requested opinion cannot be provided. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. 2. Ensure that the Veteran is scheduled for an appropriate and adequate VA examination to determine the current extent and severity of his service-connected GERD with Schatzki's ring and Barrett's esophagus. Attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and functional impairments due to GERD alone without considering the ameliorative effects of his medications and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. If the examiner finds that it is not possible to address the severity and frequency of GERD symptoms without consideration of ameliorative effects of medication, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is reminded that the Veteran is competent to report symptoms that he experiences or observes. See Layno v. Brown, 6 Vet. App. 465 (1994). The examiner must consider and address the Veteran's competent and credible reported history related to this condition. Specifically, the examiner must address and consider the Veteran's assertion that there is objective evidence to support his asserted symptoms. See May 2020 Correspondence. The Veteran states that there is objective evidence of current stricture as there is evidence that shows that he had several recurring strictures dilated with the most recent one being in May 2018 to improve his ability to swallow food. Moreover, the VA examiner must address and consider the record and the Veteran's entire disability picture. The examiner should refer to complaints of GERD issues on October 15, 2019 in Dr. V's medical records. The examiner is also directed to recognize the Veteran's explanation as to his March 13, 2020 statement that he felt fine, which he says was an email that was sent regarding a change of his upcoming appointment because of coronavirus, since the VA was not treating his GERD other than providing medication. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.