Citation Nr: 21075460 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-07 865 DATE: December 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for hiatal hernia is denied. REMANDED The issue of entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that the Veteran's hiatal hernia began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for hiatal hernia have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to August 1982 and from November 1990 to July 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal of November 2012 and June 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board remanded the issues of entitlement to service connection for peripheral vascular disease, hiatal hernia, and obstructive sleep apnea. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. An August 2021 rating decision granted entitlement to service connection for bilateral lower extremity peripheral vascular disease with mild diffuse atherosclerotic disease. As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). In June 2020, the Board denied entitlement to TBI. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted an August 2021 Joint Motion for Partial Remand (JMR), vacated the June 2020 Board decision and remanded the issue to the Board for readjudication. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). SERVICE CONNECTION Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for sleep apnea is denied. The Veteran seeks entitlement to service connection for sleep apnea. He contends that his sleep apnea is related to active service since he did not have sleep apnea prior to service. 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 Board concludes that the preponderance of the evidence is against finding that the Veteran's sleep apnea is related to his active service, or is otherwise related to an in-service injury, event, or disease. The Board has considered the Veteran's assertions that he has sleep apnea that is etiologically related to his active service. Although the Veteran is competent to report his current symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), he is not considered competent to render an opinion as to the likely etiology of sleep apnea as doing so requires specialized medical knowledge and expertise he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the Board instead turns to the competent medical evidence of record to determine whether such an etiological connection exists. Initially, the Board observes that the record establishes a current diagnosis of sleep apnea as shown in a February 2014 sleep study. Accordingly, a current disability is established. However, the Veteran's service treatment records are silent for any complaints of or treatment for sleep apnea or any other sleep-related conditions, and the first post-service medical evidence of record reflecting complaints of sleep apnea are dated in August 2013, 22 years after the Veteran's discharge from service. At that time the Veteran reported that he believed he had sleep apnea. The Veteran has not presented any argument as to how his sleep apnea is related to his active service. Thus, the record does not establish in-service incurrence of sleep apnea. Additionally, the only competent medical evidence in the claims file discussing the etiology of the Veteran's sleep apnea is a June 2020 VA opinion. The June 2020 VA examiner reviewed the record and noted that the Veteran reported signs and symptoms suggestive of sleep apnea to his VA primary care provider in late 2013. The VA examiner opined that the claimed obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness, is not related to service nor had its onset in service. As rationale, the VA examiner explained that the available service treatment records and medical records do not show any evidence of recurrent signs, symptoms diagnosis, treatments, nor a chronic disabling pattern to support a diagnosis of sleep apnea during active-duty service, nor within a year after separation from active military service. The VA examiner further explained that the first time the Veteran reported signs and symptoms suggestive of sleep apnea was 2013; therefore, it was incurred more than twenty years after his last period of active duty. As the evidence of record does not establish in-service incurrence of sleep apnea or a nexus between the Veteran's current sleep apnea and his active-duty service, service connection on a direct basis is not warranted. As such, the Board concludes that the preponderance of the evidence is against finding that the Veteran has sleep apnea that began during his active service, or is otherwise related to an in-service injury, event, or disease, and that entitlement to service connection for sleep apnea must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for hiatal hernia is denied. The Veteran seeks entitlement to service connection for a hiatal hernia. He has not presented any specific theories as to how his hiatal hernia is related to his active service. 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 Board concludes that the preponderance of the evidence is against finding that the Veteran's hiatal hernia is related to his active service, or is otherwise related to an in-service injury, event, or disease. The Board has considered the Veteran's assertions that he has hiatal hernia that is etiologically related to his active service. Although the Veteran is competent to report his current symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), he is not considered competent to render an opinion as to the likely etiology of hiatal hernia as doing so requires specialized medical knowledge and expertise he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the Board instead turns to the competent medical evidence of record to determine whether such an etiological connection exists. Initially, the Board observes that the record establishes a current diagnosis of hiatal hernia. See, e.g., October 2019 VA examination. Accordingly, a current disability is established. However, the Veteran's service treatment records are silent for any complaints of or treatment for hiatal hernia, and the first post-service medical evidence of record reflecting complaints of hiatal hernia are dated in August 1998, seven years after the Veteran's discharge from service. At that time a medical examiner noted a small sliding type of hiatal hernia. The Veteran has not presented any argument as to how his hiatal hernia is related to his active service. Thus, the record does not establish in-service incurrence of hiatal hernia. In June 2020, a VA examiner reviewed the record and opined that it is at least as likely as not that the Veteran's hiatal hernia was incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner explained that there is evidence in the Veteran's service treatment records of hiatal hernia. The VA examiner provided no further rationale for the opinion provided. The June 2020 VA examiner's opinion is not supported by the record, as the Veteran's service treatment records do not demonstrate complaints of or treatment for hiatal hernia, and the Veteran has not himself argued that his hiatal hernia had its onset during his active service. As such, the Board attributes no probative weight to the June 2020 VA examiner's opinion, and does not interpret that opinion as evidence establishing that an event, injury, or disease occurred in service that may be associated with the Veteran's current hiatal hernia. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no other competent evidence of record indicating that the Veteran's hiatal hernia may be etiologically related to his active service. The Veteran was provided a second VA opinion in August 2020. The same VA examiner who provided the June 2020 VA opinion reviewed the record and opined that the Veteran's current hiatal hernia is less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner explained that the Veteran's hiatal hernia was diagnosed after his discharge from active service. The VA examiner further explained that hiatal hernia occurs when weakened muscle tissue allows your stomach to bulge up through the diaphragm and there is no objective evidence in the service treatment records of hiatal hernia during service. Although there is no evidence that the August 2020 VA examiner interviewed the Veteran or conducted an in-person examination, the VA examiner reviewed the Veteran's claims file. In addition, the August 2020 opinion contains an appropriate rationale. For these reasons the Board affords greater probative weight to the August 2020 opinion stating that the Veteran's current hiatal hernia is not related to his active service. See Nieves-Rodriguez, 22 Vet. App. at 295. As the evidence of record does not establish in-service incurrence of hiatal hernia or a nexus between the Veteran's current hiatal hernia and his active-duty service, service connection on a direct basis is not warranted. As such, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a hiatal hernia that began during his active service, or is otherwise related to an in-service injury, event, or disease, and that entitlement to service connection for hiatal hernia must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for residuals of TBI is remanded. The parties to the August 2021 JMR agreed that the Board erred in its June 2020 decision by not providing an adequate statement of reasons or bases for its determination that an October 2019 VA examination and medical opinion were adequate. Specifically, the October 2019 VA examiner determined that there was no evidence found in the records to support a traumatic brain injury during his active service and no sequela. However, the VA examiner noted that in April 1982, during his active service, that the Veteran reported being hit in the head and experienced severe headaches thereafter. The Board finds that the claim must be remanded so that an opinion may be obtained as to whether there is an etiological relationship between the Veteran's current disability and in-service event of being hit during his active service and suffering severe headaches. The VA examiner must also address the Veteran's reports of losing consciousness following the reported incident, including his reports that he could not "recall from that time what happened next." The matter is REMANDED for the following action: Obtain an addendum opinion regarding whether the Veteran currently has residuals of a TBI that are directly related to his active service. The VA examiner should address the April 1982 incident, which the Veteran was hit in the head with an elbow and experienced a severe headache thereafter. The VA examiner should also address the Veteran's reports that the Veteran reported that he could not recall from that time what happened next. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.