Citation Nr: 21015232 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-06 061 DATE: March 17, 2021 ORDER 1. Service connection for sleep apnea to include as secondary to service-connected posttraumatic stress disorder (PTSD) is denied. 2. Service connection for hypertension to include as secondary to service-connected PTSD is denied. 3. Service connection for irritable colon syndrome to include as secondary to service-connected PTSD is denied. REMANDED 4. Service connection for GERD to include as secondary to service-connected PTSD is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of sleep apnea. 2. Service connection has been granted for PTSD. 3. The Veteran did not experience symptoms of or receive treatment for sleep apnea during service. 4. The current sleep apnea is neither caused nor worsened in severity by the service-connected PTSD. 5. The current sleep apnea first had onset in 2009, many years after discharge from service, and is not otherwise related to service. 6. The Veteran has a current diagnosis of hypertension. 7. The Veteran did not experience symptoms of or receive treatment for hypertension during service. 8. The current hypertension is neither caused nor worsened in severity by the service-connected PTSD. 9. The current hypertension first had onset in 2009, many years after discharge from service, and is not otherwise related to service. 10. The Veteran does not have a current diagnosis of a gastrointestinal disability, to include irritable colon syndrome. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea to include as secondary to service-connected PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for hypertension to include as secondary to service-connected PTSD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for irritable colon syndrome to include as secondary to service-connected PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to June 1994. The Veteran declined a Board of Veterans’ Appeals (Board) hearing on the June 2018 VA Form 9, Appeal to the Board. Service Connection Legal Authority Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires (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. In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(c). The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board finds that in this case VA met the duties under the VCAA to notify and assist. In this case, neither the Veteran nor the representative has raised specific contentions regarding VCAA duties. 1. Service Connection for Sleep Apnea to Include as Secondary to Service-Connected PTSD The Veteran asserts that service connection is warranted for sleep apnea, to include as secondary to the service-connected PTSD. See November 2015 Supplemental Claim. The Veteran claims that he has a current diagnosis of sleep apnea that is related to active service or that is caused or aggravated by the service-connected PTSD. See November 2015 Supplemental Claim. The evidence shows a current diagnosis of sleep apnea. A September 2020 VA examination shows that the Veteran was first diagnosed with sleep apnea in June 2009. Service treatment records do not show complaints of or treatment for sleep apnea or any sleep problems during service. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the current sleep apnea did not have its onset during service and is not otherwise related to service. A September 2020 VA examiner opined that the current diagnosis of sleep apnea was less likely than not related to service, and first had onset in June 2009, many years after service discharge. The Board finds that the preponderance of the lay and medical evidence is against a finding that the current sleep apnea is causally related to service. The weight of the evidence demonstrates that the sleep apnea had onset after service, which was not diagnosed until June 2009. The evidence of record does not contain a competent opinion establishing a nexus between the current sleep apnea and service. Rather, the weight of the evidence shows that the current sleep apnea had onset many years after service discharge, in June 2009. For these reasons, the Board finds that the weight of the evidence is against service connection for sleep apnea on a direct basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As to the secondary service connection theory (38 C.F.R. § 3.310), the September 2020 VA examiner opined that the sleep apnea is not caused or aggravated by the service-connected PTSD. The September 2020 VA examiner reasoned that no peer-reviewed articles show that PTSD can cause or aggravate sleep apnea, and that there was no clinical evidence that the sleep apnea was aggravated beyond the natural progression by the PTSD. The Board finds that the September 2020 VA examiner’s opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale that includes a discussion of medical literature and assesses the significance of a case-specific factual history. For these reasons, the Board finds the September 2020 VA medical opinion to be highly probative. For these reasons, the weight of the lay and medical evidence shows that service connection is not warranted on either a direct or a secondary basis for sleep apnea; therefore, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service Connection for Hypertension to Include as Secondary to Service-Connected PTSD The Veteran asserts that service connection is warranted for hypertension, to include as secondary to the service-connected PTSD. See November 2015 Supplemental Claim. The Veteran claims that he has a current diagnosis of hypertension that is related to active service or that is caused or aggravated by the service-connected PTSD. See November 2015 Supplemental Claim. A September 2020 VA examination shows a current diagnosis of hypertension. Service treatment records do not show a diagnosis of hypertension or treatment for hypertension at any time during active service. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the current hypertension did not have its onset during service and is not otherwise related to service. A September 2020 VA examiner opined that the currently diagnosed hypertension is less likely than not due to military service. The VA examiner reasoned that the current hypertension was diagnosed in 2009, and that the Veteran’s period of active service was from January 1981 to June 1994. The Board finds that the preponderance of the lay and medical evidence is against a finding that the current hypertension is causally related to service. The weight of the evidence demonstrates that the current hypertension had onset after service and that the Veteran was not diagnosed with the current hypertension until 2009. The evidence of record does not contain a competent opinion establishing a nexus between the current hypertension and service. Rather, the weight of the evidence shows that the current hypertension had onset many years after service discharge, in 2009. For these reasons, the Board finds that the weight of the evidence is against service connection for hypertension on a direct basis, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As to the secondary service connection theory (38 C.F.R. § 3.310), the September 2020 VA examiner opined that the hypertension is not caused or aggravated by the service-connected PTSD. The September 2020 VA examiner opined that the currently diagnosed hypertension is less likely than not caused or aggravated by the service-connected PTSD. The VA examiner reasoned that, although both conditions can be associated comorbidities, no peer review articles suggest correlation or causation between the two conditions. The Board finds that the September 2020 VA examiner’s opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale that includes a discussion of medical literature and assesses the significance of a case-specific factual history. For these reasons, the Board finds the September 2020 VA medical opinion to be highly probative. For these reasons, the weight of the lay and medical evidence shows that service connection is not warranted on either a direct or a secondary basis for hypertension; therefore, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service Connection for Irritable Colon Syndrome to Include as Secondary to Service-Connected PTSD The Veteran asserts that service connection is warranted for a gastrointestinal condition, to include as secondary to the service-connected PTSD. See November 2015 Supplemental Claim. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis of a gastrointestinal disability at any time during or immediately prior to the claim period. A September 2020 VA examination report reflects that the VA examiner opined that the Veteran does not have a current diagnosis of any intestinal condition, as the evidence did not show an intestinal condition. The Board finds that the September 2020 VA medical opinion is highly probative and is adequately based on objective findings as shown by the record. The September 2020 VA medical opinion includes all relevant findings and medical opinions needed to evaluate fairly the appeal. The VA examiner considered a complete and accurate history of the claimed disability as provided through review of the record, which included prior interview of the Veteran and the Veteran’s subjective complaints as it related to the current symptomatology. The September 2020 VA examiner had adequate facts and data regarding the history and condition of the claimed gastrointestinal disability when rendering the medical opinion. For these reasons, the Board finds that the September 2020 VA medical opinion provides competent, credible, and probative evidence that shows that the Veteran does not have a current diagnosis of a gastrointestinal disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board recognizes that the U.S. Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process, including immediately prior to filing a claim (see Romanowsky v. Shinseki, 26 Vet. App. 289 (2013)) can justify a grant of service connection, even where the most recent diagnosis is negative; however, where, as here, the overall evidence of record does not support a diagnosis of the claimed gastrointestinal disability, that holding is of no advantage. REASONS FOR REMAND 4. Service Connection for GERD to Include as Secondary to Service-Connected PTSD The Veteran asserts that service connection is warranted for acid reflux (GERD), to include as secondary to the service-connected PTSD. See November 2015 Supplemental Claim. The issue is REMANDED for the following action: Obtain a VA medical opinion answering the following questions. A rationale should be provided for all opinions. Is it at least as likely as not that the currently diagnosed GERD is caused by the service-connected PTSD? (Continued on the next page)   Is it at least as likely as not that the currently diagnosed GERD is aggravated by (worsened in severity beyond its normal progression by) the service-connected PTSD? J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.