Citation Nr: 21014676 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-07 974 DATE: March 15, 2021 ORDER A higher 30 percent disability rating, though no greater, is granted for gastroesophageal reflux disease (GERD). REMANDED Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD) and/or the GERD, is remanded. Entitlement to service connection for allergic rhinitis also is remanded. FINDING OF FACT For the period on appeal, the Veteran’s GERD has been manifested by persistently recurrent epigastric distress with pyrosis and regurgitation, accompanied by shoulder pain as well as sleep disturbance, nausea, and vomiting. CONCLUSION OF LAW The criteria are met for a higher 30 percent disability rating, though no greater, for the Veteran’s GERD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code (DC/Code) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1995 to October 1999. In January 2021, in support of these claims, the Veteran testified at a “virtual” hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. 1. A higher 30 percent disability rating, though no greater, is granted for the service-connected GERD During the recent January 2021 “virtual” hearing before this Board, the Veteran and his attorney expressly indicated they are requesting, at most, a 30 percent rating for the GERD and, therefore, would be content or satisfied if the Board granted this greater rating, i.e., they are not requesting an even higher rating. Although it generally will be presumed that a Veteran is seeking the maximum benefit allowed by law and regulation, a claimant may “limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law” via “clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition.” See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). For reasons and bases that will be discussed, the Board agrees that a higher 30 percent rating is warranted for the GERD, and therefore granting this greater rating, but the Board will not additionally consider whether any rating greater than 30 percent is warranted inasmuch as the Veteran and his attorney have expressly limited the scope of this appeal to wanting a rating, at most, at this 30-percent level. The Veteran’s service-connected GERD has been rated under the provisions of Diagnostic Code 7346. Under this regulatory provision, a 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. During the pendency of this appeal the principal medical evidence material to the Veteran’s claim for an increased rating for his GERD is contained in the report of an October 2016 VA examination. The remainder of the medical treatment records contain no evidence materially inconsistent with the findings of that examination as relating to his GERD. Thus, the Board’s focus is on the findings from that VA compensation examination. Notably, during that October 2016 VA examination, the Veteran reported experiencing persistently recurring epigastric distress, with pyrosis (heartburn), reflux, regurgitation, shoulder pain, recurrent nausea and vomiting, and 4 or more sleep disturbances per year lasting 1 to 9 days. He also was taking several prescription medications on a continual basis to help alleviate or at least lessen his symptoms. During the more recent January 2021 “virtual” hearing before this Board, the Veteran’s attorney pointed out that the October 2016 VA examiner had confirmed the Veteran experiences virtually all the symptoms required for a higher 30 percent rating for his GERD – that is, if the report of that evaluation is read in its entire context. The Veteran testified this is an everyday issue (e.g., vomiting (especially in the morning, but also anytime), and that he has stomach acid, stomach cramps, and a feeling that something is stuck in his upper chest region). He also explained that he had surgery to try and widen his esophagus, that it has worked to some extent to alleviate some of his symptoms, but also that he has had changes in his medications – both those prescribed and the ones he instead obtains over the counter. The attorney pointed out that the only box the October 2016 VA examiner did not check (affirm) on the examination report for the higher 30 percent rating is the one concerning whether there is “considerable impairment of health”. But, even so, she argued that reading the report in its entirety – also when recognizing the need for surgery, shows this other requirement also is met. The Board agrees with this broader interpretation of that VA examiner’s findings and, thus, concludes the Veteran’s symptoms meet the requirements for the higher 30 percent rating. Thus, the appeal for this greater rating is being granted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, including as secondary to service-connected PTSD and/or GERD, is remanded. The Veteran was afforded a VA examination in November 2016 to determine the etiology of his sleep apnea; however, the Board finds that examination inadequate for adjudication purposes, in turn, requiring the Board obtain more medical comment on this determinative issue. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). That VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by his snoring in service because snoring is merely a symptom of sleep apnea, not instead a cause of this disorder. However, the examiner failed to explain why the Veteran’s snoring in service (if accepting he did that in service) is not indication he had early-stage sleep apnea during his service, even if not initially diagnosed until later after his service had concluded. See 38 C.F.R. § 3.303(d). The Veteran testified during his more recent January 2021 hearing that, not only did his snoring start during his time in service, but so, too, did cessation of his breathing while sleeping (i.e., apnea) and consequent daytime sleepiness. The RO denied this claim essentially because of no service treatment records (STRs) documenting this medical issue in service and no medical evidence establishing the required correlation (“nexus”) between this condition and the Veteran’s service.   But the attorney pointed out during the hearing that the Veteran’s brother has submitted a supporting lay statement dating this condition back to the Veteran’s service, also that this claim additionally needs to be considered on the alternative premise that a service-connected disability – namely, the PTSD and/or GERD, caused or aggravate the sleep apnea to, in turn, warrant entitlement to secondary service connection, even if accepting that it initially was diagnosed in 2013, so well after conclusion of the Veteran’s service, based on the results of a sleep study. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). A medical opinion has not been obtained addressing this other posited theory of entitlement, so an addendum medical opinion also addressing this other possibility is needed before adjudicating this claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for allergic rhinitis also is remanded. The Veteran conversely has not been provided a VA examination concerning this other claim for service connection for allergic rhinitis. VA’s duty to assist includes providing a medical examination or obtaining an opinion when needed to assist in deciding a claim. Id. A preliminary review of the record shows the Veteran has the required diagnosis of allergic rhinitis, which he alleges is from exposure to chemicals while performing the duties and responsibilities of his military occupational specialty (MOS) in aircraft maintenance. See January 2021 Virtual Hearing Transcript; DD Form 214 (noting MOS as tactical aircraft maintenance journeyman). Also during his recent January 2021 “virtual” hearing before this Board, the Veteran testified that he started experiencing the effects or symptoms of this condition during his service, especially after using certain chemicals and such in that responsibility. And, as for why it is not documented in his STRs, he explained that did not report it during service because, if he had, it would have effected or even precluded his eligibility to work with those chemicals intrinsic to his MOS, which he did not want to happen since did not want to be taken off that activity. He added that his seasonal allergies also have persisted since his service, and his brother has submitted a supporting lay statement concerning this claim. Given that purported chain of events, the Board finds it necessary to also have the Veteran undergo a VA compensation examination concerning this other claim for a medical nexus opinion to assist in determining the etiology of this disorder, especially insofar as its purported relationship with his military service. McLendon, 20 Vet. App. at 79. Accordingly, these claims are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his remaining claims of entitlement to service connection for sleep apnea and allergic rhinitis, whether from VA and/or private providers. 38 C.F.R. § 3.159(c). Appropriately notify him if unable to obtain identified records that he provides sufficient information concerning. 38 C.F.R. § 3.159(e). 2. After receiving all additional treatment or other relevant records, obtain a supplemental (addendum) medical opinion regarding the etiology of the Veteran’s sleep apnea – which, aside from being claimed to have started during his service (so direct incurrence in service) is additionally being claimed as secondary to his service-connected PTSD and/or GERD. So, medical opinions are needed concerning both possibilities (i.e., direct and secondary service connection). If needed to respond to the questions being asked, schedule him for a VA examination to obtain this needed additional comment concerning the nature and etiology of this claimed disability. All indicated testing and evaluation must be completed and the findings reported in detail. All relevant medical and other relevant records must be made available to the examiner for review, including a complete copy of this decision and remand.   After reviewing the claims file, including this remand, the examiner is asked to answer the following questions: a) If, as the prior November 2016 VA examiner intimated, the mere fact that the Veteran may have snored during his time in service from October 1995 to October 1999 is not reason or tantamount to concluding he had sleep apnea (since snoring is merely a symptom, not cause of this disorder), please also provide more discussion of whether it is at least as likely as not the snoring in service (if accepting it occurred) was not an early indication of sleep apnea, even if not initially diagnosed until later, in 2013 or thereabouts, following a sleep study. b) Alternatively, is it at least as likely as not (a 50 percent probability or greater) the Veteran’s sleep apnea was caused OR is aggravated by his service-connected PTSD and/or GERD? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of sleep apnea by service-connected PTSD and/or GERD. Rationale for the opinions provided is essential. The absence of evidence of treatment for sleep apnea in the Veteran’s service treatment records (STRs) or even post-service treatment records before initial diagnosis cannot be the sole reason for providing an unfavorable opinion, certainly not in the context of secondary service connection. However, it is permissible to consider this as one of several factors – provided there is explanation of why it is reasonable to expect documentation of specific complaints, etc., in the treatment records. The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. 3. Also provide the Veteran a VA medical examination for an opinion concerning the etiology of his additionally claimed allergic rhinitis. A copy of this remand and all relevant medical and other records should be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran’s lay assertions, and undertake any indicated studies. All testing indicated by the current Disability Benefits Questionnaire (DBQ) format must be addressed. Based on a review of the results of the Veteran’s physical examination, his statements regarding the development and treatment of this condition, and review of the claims file, the examiner should answer the following question: Is it at least as likely as not (a 50 percent probability or greater) the Veteran’s allergic rhinitis began during his service from October 1995 to October 1999 or is otherwise related or attributable to his service, including to his alleged exposure to chemicals as part of his MOD as a tactical aircraft maintenance journeyman? Rationale for the opinion provided is essential. The absence of evidence of treatment for allergic rhinitis in the Veteran’s STRs or even post-service treatment records preceding initial diagnosis cannot be the sole reason for providing an unfavorable opinion. However, it is permissible to consider this as one of several factors – provided there is explanation of why it is reasonable to expect documentation of specific complaints, etc., in the treatment records before initial diagnosis. The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.