Citation Nr: 21013270 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-46 150 DATE: March 9, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for esophagitis is denied. FINDINGS OF FACT 1. OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service, nor was it caused or aggravated by the Veteran’s service-connected connected temporomandibular joint dysfunction (TMJ). 2. Esophagitis is not shown to be causally or etiologically related to any disease, injury, or incident during service, nor was it caused or aggravated by the Veteran’s service-connected TMJ. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1101, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for esophagitis have not been met. 38 U.S.C. §§ 1101, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1984 to November 1986. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Obstructive Sleep Apnea The Veteran asserts that he has OSA that was caused or aggravated by his service connected to TMJ. See October 2014 Claim. Medical records dated June 2009 show the Veteran was diagnosed with OSA. Thus, the Board finds the requirement for a current disability is met. See Shedden, 381 F.3d at 1167. As to in-service disease or injury, there is no evidence of complaints of or treatment for OSA on active duty. The Board finds this element is not met. The Board finds that the preponderance of the evidence is against a nexus between his OSA and his service connected TMJ causing or aggravating his OSA. VA obtained an opinion addressing the Veteran’s assertion in December 2019, it was determined that the Veteran’s OSA was not proximately due to or aggravated beyond its natural progression by his TMJ. The examiner supported this conclusion by noting the Veteran’s TMJ was a separate medical entity entirely from his OSA and medical literature did not suggest a medical relationship. The examiner noted the risk factors for development of OSA, including obesity, and cited to medical literature in support of their opinion. The examiner opined that TMJ did not aggravate OSA and supported this opinion by noting that TMJ did not affect the airway during sleep and that OSA was a disease affecting upper airway soft tissue. See December 2019 Opinion. The record of evidence does not indicate or suggest a relationship between obesity and service-connected disability. The Board finds there is no competent medical evidence linking the Veteran’s current sleep apnea directly to service or to service-connected disability. The Veteran’s sleep apnea was not present during military service, and the medical and lay evidence of record suggests that sleep apnea first manifested many years after the Veteran’s separation from active service. In light of the above, the Board finds that the preponderance of the evidence is against a nexus between the Veteran’s current disability and his service connected TMJ. Significantly, the December 2019 opinion is probative because it was based on a complete review of the claims file, including medical articles presented by the examiner, and it provided an explanation that contains clear conclusions and a supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also finds that the medical opinions clearly reflect consideration of the Veteran’s theory of entitlement; nevertheless, a detailed and reasoned opinion was provided concluding that his OSA was not caused or aggravated beyond its natural progression by his service connected TMJ. The Board considered the benefit of the doubt rule; however, as the preponderance of the evidence is against the award of service connection, direct or secondary, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for OSA is not warranted and the claim must be denied on a direct basis and on a secondary basis. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Esophagitis The Veteran asserts that his esophagitis was caused or aggravated by his service connected TMJ. See October 2014 Claim. Medical records dated December 2014 show the Veteran was diagnosed with esophagitis. Thus, the Board finds the requirement for a current disability is met. As to in-service disease or injury, there is no evidence of complaints of or treatment for esophagitis on active duty. The Board finds this element is not met. In support of his claim, the Veteran provided a narrative report from his treating physician, Dr. D.B. dated December 2014. In this opinion, Dr. D.B. noted the Veteran reported that his TMJ was hampering his ability to eat appropriate foods and consistencies. Dr. D.B. then stated “I, too, am concerned this could be exacerbating his severe esophagitis and esophageal strictures.” See December 2014 Opinion. The Veteran also submitted a December 2015 Opinion from Dr. D.B. See December 2015 Opinion. In the December 2015 opinion, Dr. D.B. opined that the Veteran’s TMJ was an aggravating factor in his esophagitis, noting “the patient’s difficulty eating, and limited food seems to be a contributing factor.” The Board notes the use of “could” and “seems” renders these opinions speculative and of limited probative value. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that speculative opinion is not legally sufficient to establish service connection). Here, Dr. D.B. based these medical opinions, at least in part, the Veteran’s report of TMJ interfering with chewing food, but Dr. D.B. did not provide further rationale or explanation for how difficulty eating and limited food would result in esophagitis or aggravate esophagitis. The Board is not obligated to accept medical opinions premised on a veteran’s recitation of medical history. See Godfrey v. Brown, 8 Vet. App. 113 (1995). However, reliance on a veteran’s statements renders a medical report incredible only if the Board rejects the statements of the veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (citing Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) for the proposition that Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (Board is not bound to accept uncorroborated account of veteran’s medical history but must assess the credibility and weight of the evidence provided by the veteran when rejecting it). The Board remanded the claim in August 2019 in order to obtain an adequate opinion, In December 2019 a VA examiner reviewed the Veteran’s claims file. The December 2019 VA examiner provided an opinion in which she opined that esophagitis was less likely than not caused or aggravated by the service connected TMJ. The examiner noted TMJ and esophagitis are not medically related, the medical literature does not support a causal relationship, and the medically recognized risk factors were more likely etiologies. The examiner addressed the December 2014 and December 2015 opinions from Dr. D.B. and noted that none of the medically identified esophagitis disorders were shown by medical literature to be caused or aggravated by poorly chewed foods. The examiner also noted the Veteran’s medical history was positive for two of the recognized risk factors, alcohol use and obesity. The record of evidence does not indicate or suggest a relationship between obesity and service-connected disability. Based on the foregoing, the Board finds that the Veteran’s TMJ did not cause or aggravate his esophagitis, and thus service connection on a secondary basis is not warranted. In reaching its decision, the Board finds the December 2019 VA opinion highly probative as it considered all of the pertinent evidence of record, to include the Veteran’s statements and the opinions from Dr. D.B., and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). When compared to the opinions from Dr. D.B., the Board attributes more probative value to the December 2019 opinion because it is well supported with rationale and does not contain speculative terms. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue of the etiology of esophagitis, such falls outside the realm of common knowledge of a lay person. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Veteran’s opinion as to the etiology of his esophagitis is not competent evidence and, therefore, is afforded no probative weight. Consequently, the Board finds that the Veteran’s esophagitis is not causally or etiologically related to any event, injury, or disease in service, and is not caused or aggravated by service connected TMJ. The Board considered the benefit of the doubt rule; however, as the preponderance of the evidence is against the award of service connection, direct or secondary, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for esophagitis is not warranted and the claim must be denied on a direct basis and on a secondary basis. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.