Citation Nr: 21008184 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-11 675 DATE: February 11, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a gastric polyp disability is denied. Entitlement to a 10 percent rating, but no higher, for gastroesophageal reflux disease is granted. FINDINGS OF FACT 1. Sleep apnea was manifest during active service. 2. The Veteran does not have a current gastric polyp disability. 3. Gastroesophageal reflux disease is manifested by pyrosis and regurgitation. CONCLUSIONS OF LAW 1. Sleep apnea was incurred during wartime service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. A gastric polyp disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a 10 percent rating, but no higher, for gastroesophageal reflux disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to June 2008. A hearing was held before the undersigned veterans law judge in February 2020 in Philadelphia, Pennsylvania. The transcript is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. Service Connection To establish service connection a Veteran must generally show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). 1. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea was manifest in service, or alternately, that it is secondary to his service-connected GERD. The Board concludes that the Veteran has sleep apnea which was manifest during his active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records do not show sleep complaints, and the Veteran denied frequent difficulty sleeping. The Veteran had a VA examination for sleep apnea in August 2015. He reported that he had a history of loud and disruptive snoring and daytime sleepiness, which was ultimately diagnosed as sleep apnea following a sleep study. No etiological opinion was provided. At his hearing, the Veteran’s wife testified that when she first started dating the Veteran, while he was on active duty, he seemed very tired and would occasionally fall asleep in the middle of conversations. He would snore loudly at night and occasionally stop breathing. In an October 2015 lay statement, the Veteran’s wife reported that the Veteran had sleeping problems for years before he finally had a sleep study. The Veteran submitted another lay statement in October 2015, from a fellow officer who reported that the Veteran had trouble falling asleep, snored loudly, and would occasionally stop breathing during sleep. He also reported that the Veteran would doze off at work. The Veteran submitted a third lay statement in May 2017, from a senior officer for whom the Veteran worked during active duty. The officer noted that the Veteran was tired more often than others and would doze off in meetings and during lengthy discussions. The Veteran and other lay witnesses are competent to report his readily observable symptoms, including snoring and falling asleep during conversations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Upon review of the record, the Board finds the evidence to weigh in favor of a finding that the Veteran’s current sleep apnea was manifest in service. Multiple lay sources have reported that the Veteran had difficulty sleeping, snored loudly, occasionally stopped breathing during sleep, and fell asleep during meetings and conversations while on active duty. These symptoms are what led to the Veteran’s diagnosis of sleep apnea and indicate that his sleep apnea was manifest during his active duty. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for gastric polyp The Veteran seeks service connection for a gastric polyp, claimed as gastritis. The issue 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 service. The Board concludes that the Veteran does not have a current gastric polyp disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The August 2015 VA examiner evaluated the Veteran and determined that, while he had a gastric polyp removed during service, he did not currently have any symptoms related to a gastric polyp. Endoscopy records from August 2015 show that the Veteran had multiple gastric polyps removed and biopsied. No symptoms from the polyps were reported. At the Veteran’s hearing, he testified that his gastric polyp did not bother him at all. He reported no symptoms or treatment. His statements are consistent with a determination that he does not have a disability, an impairment. Consequently, the Board finds that the evidence of record is against a finding that the Veteran currently has any gastric polyp disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for a gastric polyp disability is denied. 3. Entitlement to a 10 percent rating, but no higher, for gastroesophageal reflux disease The Veteran seeks a compensable rating for his gastroesophageal reflux disease (GERD). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran’s GERD is rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346, for hiatal hernia. Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The Veteran’s GERD manifested in two or more symptoms for the 30 percent evaluation of less severity. The Veteran received a VA examination in August 2015. The examiner noted the Veteran had pyrosis and reflux. No other symptoms were reported. There was no substernal or arm or shoulder pain. At this February 2020 hearing, the Veteran testified that he has daily symptoms consisting of regurgitation and burning in the chest, as well as occasional shortness of breath and coughing. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds no reason to doubt the Veteran’s credibility. Accordingly, the Board finds that the Veteran’s GERD manifested in two or more symptoms (pyrosis and regurgitation) for the 30 percent evaluation of less severity throughout the appeal period, corresponding to the criteria for a 10 percent rating under DC 7346. A higher 30 percent rating under DC 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The Veteran has not reported substernal or arm or shoulder pain, as required for a 30 percent rating, at any point. Thus, the Veteran’s GERD did not more nearly approximate persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A higher 30 percent rating under DC 7346 is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.