Citation Nr: 21009449 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-04 803 DATE: February 22, 2021 ORDER Entitlement to service connection for a back disability, to include degenerative arthritis, is denied. Entitlement to service connection for a thyroid condition, to include hypothyroidism, is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for GERD is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s back disability, to include degenerative arthritis, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; is attributable to intercurrent causes of excess weight, age, and/or an injury during civilian work; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that hypothyroidism began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service or otherwise related to an in-service injury or disease; the preponderance of the evidence establishes that sleep apnea is attributable to intercurrent causes of excess weight and age. 4. The preponderance of the evidence is against finding that GERD began during active service or otherwise related to an in-service injury or disease; the preponderance of the evidence establishes that sleep apnea is attributable to intercurrent causes of excess weight, age, smoking, and alcohol. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability, to include degenerative arthritis, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a thyroid condition, to include hypothyroidism, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 14, 1991 to March 7,1992; February 3, 2003 to March 8, 2004; and January 17, 2008 to March 12, 2009. Additionally, he had several brief periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Puerto Rico Army National Guard spanning from April 1996 to at least July 2015. Service Connection Back Disability The Veteran contends that his current back disability is etiologically related to active service. Generally, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty, or from acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for periods of ACDUTRA or INACDUTRA is not appropriate. The Veteran has a current diagnosis of degenerative arthritis (osteoarthritis) as evidenced by a January 2020 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a) and the presumptions regarding chronic diseases apply. 38 C.F.R. §§ 3.303, 3.307; see Walker, 708 F.3d 1331. However, arthritis was not shown as chronic during active duty, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Treatment records show the Veteran was not diagnosed with arthritis until years after separation from active service and years outside of the applicable presumptive period. Specifically, a June 2016 treatment record noted mild narrowing of the L4-L5 intervertebral disc space that may represent early degenerative disc disease. The Board acknowledges that the evidence indicates the Veteran experienced a back injury in June 2013, during a period of ACDUTRA. However, the presumptions regarding chronic diseases do not apply to periods of ACDUTRA. While the Veteran and a fellow comrade are competent to report having experienced symptoms of pain since service and during the presumptive period, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis because he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to age, obesity, and an injury in 2016 during civilian work. The August 2020 examiner opined that it is less likely than not that the Veteran’s low back pain is due to an injury or event in service. The examiner noted the line of duty report in June 2013 and that there was no further complaint, diagnosis, or treatment until October 2016 when a provider noted injured back 3 years ago now with recent exacerbation in view of his job driving a truck. The August 2020 examiner noted that the evidence shows ongoing complaints of back pain from 2016 forward. He stated that the June 2016 MRI showed early degenerative disc disease which is most likely caused by age and obesity. He concluded that the acute 2013 injury resolved and that the 2016 injury during civilian work led to chronic complaints of pain. Service connection may still be granted on a direct basis. However, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s current arthritis and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Service treatment records are silent for complaints or treatment of back pain until June 2013. A June 2013 statement of medical examination indicated that the Veteran was injured in the line of duty during a period of ACDUTRA while unloading a weapons rack. The Veteran felt a pinch in his back and complained of pain. A June 2013 service treatment record noted the Veteran’s report that this was the first time he felt this pain. However, the preponderance of the evidence indicates that the Veteran’s current arthritis is not related to the June 2013 injury. The January 2020 and August 2020 VA examiners opined that the Veteran’s arthritis is not at least as likely as not related to an in-service injury, event, or disease, including the June 2013 injury. The collective rationale was that the acute muscular injury in June 2013 resolved and there was no further complaint, diagnosis, or treatment until an October 2016 provider noted that there was a recent exacerbation of his back in view of his job driving a job. The January 2020 and August 2020 VA examiners determined the 2016 injury was a new injury during civilian work that led to chronic complaints of pain. Additionally, the examiners noted that a June 2016 MRI showed early degenerative disc disease which is mostly caused by age and obesity. Further, the examiners concluded the Veteran’s age and/or weight is more likely than not the cause of his back pain. While the Veteran and a fellow comrade believe his current arthritis is related to an in-service injury, event, or disease, including the June 2013 injury, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The preponderance of the evidence is against establishing a disease that was chronic during active duty, manifested to a compensable degree within a presumptive period, or was noted in service with attributable continuity of symptomatology. Additionally, the preponderance of the evidence is against establishing a nexus between the Veteran’s current arthritis and an in-service injury. Accordingly, service connection for a back disability is not warranted and the claim is denied. Thyroid The Veteran contends his present thyroid condition is etiologically related 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, while the Veteran has a current diagnosis of hypothyroidism, the preponderance of the evidence weighs against finding an in-service event or that the Veteran’s diagnosis of hypothyroidism began during service or is otherwise related to an in-service injury, event, or disease. VA and federal treatment records show the Veteran was not diagnosed with hypothyroidism until November 6, 2013, years after separation from service. Additionally, this did not occur during a period of ACDUTRA or INACDUTRA, based on Army National Guard records. While the Veteran is competent to report having experienced symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of hypothyroidism. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). January 2020 and August 2020 VA examiners opined that the Veteran’s hypothyroidism is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that November 1991 entrance examination and March 2009 exit examinations did not note thyroid issues, a diagnosis was made 5 years after active service, there is no evidence of chronicity of care, and that age could be a cause. The opinions are probative, because they are 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). The Veteran believes his hypothyroidism is related to an in-service injury, event, or disease. Again, the Veteran is not competent to provide nexus opinions as the issue is medically complex and requires knowledge of the interaction between multiple organ systems in the body, anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Consequently, the Board gives more probative weight to the January 2020 and August 2020 VA examinations. In sum, the preponderance of the evidence is against establishing a nexus between the Veteran’s current hypothyroidism and service. Accordingly, service connection for a thyroid condition, to include hypothyroidism, is not warranted and the claim is denied. Sleep Apnea The Veteran asserts his obstructive sleep apnea is etiologically related 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, while the Veteran has a current diagnosis of obstructive sleep apnea and evidence shows that he was observed to have sleep disturbances during service such as snoring, the preponderance of the evidence weighs against finding that his current diagnosis of obstructive sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. The record contains conflicting medical opinions regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not related to an in-service injury, event, or disease, including snoring during service. The January 2020 and August 2020 VA examiners opined that the Veteran’s obstructive sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including snoring during service. The rationale was that the November 1991 entrance examination and March 2009 exit examination denied sleep issues; a diagnosis was made 7 years after active duty service with no evidence of chronicity of care; obesity and age are risk factors and the most common causes of sleep apnea; and the Veteran’s age of 53 years old and BMI are more likely than not the causes of his sleep apnea. The opinions are probative, because they are based on an accurate medical history, based on medical literature, and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner Y.Q. opined in July 2019 that the Veteran’s current sleep apnea condition is more likely than not due to his military service in Cuba in 2008. The rationale was that she reviewed service treatment records, VA medical records, personal medical history, and R.B.G.’s lay statement about sleep disturbances while in the military. Additionally, the private practitioner opined that the Veteran’s sleep disturbances while in the military was the onset of his sleep apnea. The July 2019 private opinion is, however, outweighed by the January 2020 and August 2020 VA opinions. Though Y.Q. stated that service treatment records were reviewed, she did not reconcile her opinion with the Veteran’s in-service denial of sleep disturbances and negative examinations. Instead, Y.Q.’s opinion appears to be based on the Veteran and a fellow servicemember’s post-service reported medical history, which is inconsistent with service treatment records that show the Veteran denied sleep disturbances during active duty. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Specifically, in a January 2009 post-deployment health assessment, the Veteran denied problems sleeping or still feeling tired after sleeping after deployment to Cuba. This indicates that Y.Q.’s opinion was based on an inaccurate factual premise or, at minimum, does not provide an opinion with clear conclusions or supporting data. Additionally, Y.Q. did not address possible intercurrent causes such as the Veteran’s age and BMI. Further, Y.Q. did not cite to any medical literature. In contrast, the January 2020 and August 2020 VA examinations provided adequate supporting data by citing to relevant medical literature in support of their opinions. For these reasons, the Board gives more probative weight to the January 2020 and August 2020 VA examinations because they are based on an accurate medical history, based on medical literature, and provide an explanation that contains clear conclusions and supporting data. Finally, the evidence does not establish that the Veteran was diagnosed with obstructive sleep apnea during active duty service or ACDUTRA. VA and federal treatment records show the Veteran was not diagnosed with obstructive sleep apnea until July 2016. The first documented complaint of sleep disturbances in treatment records occurred in a December 2015 VA treatment record. The Board acknowledges the Veteran and servicemember R.B.G.’s reports that he snored during active service and that symptoms began during deployment to Cuba in 2008. While the Veteran and R.B.G. are competent to report the Veteran had symptoms such as daytime fatigue and snoring since service, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of obstructive sleep apnea. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Therefore, it is outside the competence of the Veteran and R.B.G. in this case because the record does not show that they have the medical training or credentials to make such a determination. Additionally, the Veteran and R.B.G.’s statements are inconsistent with his in-service denials of sleep disturbances. Though the Veteran is competent to report observable symptoms, the Board finds that his subsequent assertions are outweighed by his in-service denial of sleep disturbances made immediately after his deployment to Cuba in January 2009. For these reasons, the Board finds that the Veteran’s testimony and R.B.G.’s July 2019 statement are outweighed by his prior contemporaneous January 2009 denial of sleep disturbances and the January 2020 and August 2020 VA examinations. In sum, the preponderance of the evidence is against establishing a nexus between the Veteran’s current obstructive sleep apnea and service. Accordingly, service connection for obstructive sleep apnea is not warranted and the claim is denied. GERD The Veteran asserts his GERD is etiologically related 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, while the Veteran has a current diagnosis of GERD and evidence shows that he received a diagnosis of esophageal reflux during a period of active duty, the preponderance of the evidence weighs against finding that the Veteran’s current GERD began during service or is otherwise related to an in-service injury, event, or disease. The record contains conflicting medical opinions regarding whether the Veteran’s GERD is at least as likely as not related to an in-service injury, event, or disease, including a January 2004 diagnosis of esophageal reflux. The January 2020 and August 2020 VA examiners opined that the Veteran’s GERD is less likely than not caused by service. The rationale was as follows: obesity, certain foods, smoking, and alcohol can increase the risk of or cause GERD. The VA examiners determined that his current GERD was due intercurrent causes of his age, BMI of 34, and history of smoking and alcohol. The August 2020 VA examiner indicated that though the Veteran was diagnosed with esophageal reflux in January 2004, it was acute and resolved. The examiner noted that there is no indication he was given GERD medications once released from the hospital and there was no further complaint, diagnosis or treatment until 2011. Additionally, the examiners noted that the September 2011 VA treatment record that provided a diagnosis of GERD indicated the Veteran complained of heartburn for 2 months prior only. The January 2020 and August 2020 VA examiners opinions are probative, because they are based on an accurate medical history, based on medical literature, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner Y.Q. opined in October 2019 that the Veteran’s current GERD is more likely than not due to his military service in Cuba in 2008. The rationale was that she reviewed service treatment records and VA treatment records; the Veteran complained of GERD problems during service; and he has been prescribed medications such as omeprazole since the January 2004 diagnosis. The October 2019 private opinion is, however, less probative than the January 2020 and August 2020 VA opinions. Though Y.Q. stated that service treatment records were reviewed, she did not reconcile her opinion with the Veteran’s in-service denials of gastrointestinal problems after the January 2004 diagnosis. Additionally, the October 2019 private opinion appears to be based on an inaccurate factual premise. Specifically, Y.Q. stated that the Veteran was diagnosed in January 2004 and has been prescribed medications like Omeprazole for daily use since then. However, this is inconsistent with the available medical evidence. Service treatment records show the Veteran was not prescribed any medications and had no further instances of gastrointestinal symptoms until September 2011, several years after the initial January 2004 treatment record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Ronal v. Brown, 5 Vet. App. 458, 460-61 (1993). Additionally, Y.Q. did not address possible intercurrent causes such as the Veteran’s age, BMI, smoking, and alcohol. Further, Y.Q. did not cite to any medical literature. In contrast, the January 2020 and August 2020 VA examinations provided adequate supporting data by citing to relevant medical literature in support of their opinions. For these reasons, the Board gives more probative weight to the January 2020 and August 2020 VA examinations because they are based on an accurate medical history, based on medical literature, and provides an explanation that contains clear conclusions and supporting data While the Veteran is competent to report symptoms such as vomiting since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current GERD. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that they have the medical training or credentials to make such a determination. In sum, the preponderance of the evidence is against establishing a nexus between the Veteran’s GERD and service. Accordingly, service connection for GERD apnea is not warranted and the claim is denied. REASONS FOR REMAND Having reviewed the record, the Board finds that remand is warranted. The Veteran was afforded an examination in January 2020 and an addendum opinion in August 2020. However, remand is warranted for clarification. Pursuant to 38 C.F.R. § 3.303(b), with chronic disease shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Here, the January 2020 and August 2020 VA examiners did not provide an opinion on whether his current hypertension at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Accordingly, remand is warranted for an addendum opinion. Any outstanding VA treatment records from July 2020 to present should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension at least as likely as not (1) began during active service, (2) manifested to a compensable degree within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vang, Stephanie 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.