Citation Nr: 21077226 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-00 381A DATE: December 29, 2021 ORDER Entitlement to service connection for a gastrointestinal disability, diagnosed as gastroesophageal reflux disease (GERD), to include as secondary to sleep apnea is granted. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran's GERD is due to his service-connected obstructive sleep apnea. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a GERD has been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from June 1976 to January 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In February 2018, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In a November 2020 decision, the Board remanded claims for service connection for a gastrointestinal disability, a headache disability and a back disability. In January 2021, the RO granted service connection for a headache disability and a back disability. As these are considered a full grant of the claims on appeal, these issues are no longer before the Board. Entitlement to service connection for a gastrointestinal disability remains the only issue on appeal and is returned to the Board for adjudication. Service Connection Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for a gastrointestinal disability to include as secondary to sleep apnea, hypertension, and medications prescribed for service-connected disabilities The Veteran contends that his gastrointestinal disability is due to service. See October 2010 Veteran Statement. The Veteran has a current disability; an October 2021 VA examination diagnosed the Veteran with GERD. In November 2020, the Board remanded the claim on appeal for a VA examination and opinion on whether the Veteran's GERD is due to service or is caused or aggravated by a service-connected disability. In October 2021, the Veteran was afforded an examination to determine the nature and cause of the Veteran's GERD. The examiner found that the Veteran's GERD was less likely than not due to service as there was no evidence of GERD in service. However, the examiner also found that it was as least as likely as not that the Veteran's GERD was due to his service-connected OSA. In November 2021, the RO requested an addendum medical opinion from the examiner to reconcile conflicting medical information that "the Veteran's GERD is caused by his OSA but that his GI disability is not caused by sleep apnea". The examiner subsequently found that the Veteran's GERD was less likely than not caused by service-connected OSA. By way of rationale, the examiner stated "[t]here is no evidence in the literature to support that OSA causes GERD. OSA can worsen GERD but it has not been shown to cause GERD itself". Although the RO subsequently relied on the November 2021 VA examination opinion to deny the claim, the mere decision to obtain the opinion/further develop the claim was improper, as the nexus element of the claim had already been established. See 38 C.F.R. § 3.303. See, e.g., Mariano v. Principi, 17 Vet. App. 305 (2003) (providing that VA may not undertake additional development, such as scheduling an examination, if the sole purpose is to obtain evidence against a claim). Moreover, in both the October and November 2021 VA opinions, the examiner found by either causation or aggravation that the Veteran's GERD was more likely than not due to his service-connected OSA. Based on the evidence of record, and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for GERD is warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.