Citation Nr: 21015250 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-03 660 DATE: March 17, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT Resolving doubt in the Veteran’s favor, the Veteran’s GERD began during active service. CONCLUSION OF LAW The criteria for service connection for GERD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1973 to February 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision. These matters were denied in a March 2018 Board decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In August 2019 the Court issued a memorandum decision that vacated the March 2018 denial. These matters were remanded by the Board in April 2020. The Board finds there has been substantial compliance with its remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for GERD The Veteran contends that his GERD had its onset during military service. The Board concludes that the Veteran has a current disability of GERD that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A January 2017 VA examination and VA treatment records show the Veteran has a current diagnosis of GERD. The Veteran reported frequent indigestion in an undated report of medical history contained in his service treatment records (STRs), and a September 2001 STR notes positive GERD symptoms in the past. The evidence against the claim includes a January 2017 VA examination finding that the Veteran’s GERD is not due to service because GERD is due to incompetence of the gastroesophageal sphincter, which is an anatomical condition that is not caused by toxic chemicals and is caused congenitally or certain foods. This opinion does not discuss whether the GERD had its onset during service, in spite of finding a retroactive diagnosis for GERD of 1998, which is during the Veteran’s period of service, and noting heartburn since that date. The Veteran reported that he experienced GERD in service, and a flight surgeon with whom he worked would give him antacid tablets. A December 2020 VA medical opinion found no documentation that the Veteran complained of or was treated for GERD or symptoms associated with GERD during service, but does not discuss the notations related to GERD in the Veteran’s STRs, which are discussed above, or the Veterans competent report of heartburn during service. These negative medical opinions are inadequate because of their failure to discuss the Veteran’s reports of in-service GERD. The evidence in favor of the claim are a series of opinions obtained in June and July 2020. A June 2020 opinion stated that the Veteran’s gastroesophageal issue occurred during service. A July 2020 opinion stated that the November 2017 examination as rationale for this opinion, noting that examiner’s retroactive diagnosis of GERD in 1998. Another opinion from later that month reiterated that the gastroesophageal issues began during service. The Board recognizes that these opinions are vague and poorly explained, and that the record does not contain a treatment record from 1998 diagnosing the Veteran with GERD. However, considering that the Veteran contends that his acid reflux had its onset during service, notations in his STRs support this assertion, the common thread of the positive medical opinions indicate that the GERD began during service, and the fact that VA has already obtained five medical opinions on this issue, the Board will resolve doubt in the Veteran’s favor and find that, when taken together, the totality of the evidence of record is sufficient to show that GERD had its onset during service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current GERD arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for GERD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. Unfortunately, an adequate VA medical opinion has not been obtained as instructed by the April 2020 remand. The November 2020 negative aggravation opinion uses the incorrect legal standard of “aggravated beyond its natural progression” rather than the correct definition of aggravation as any increase in disability. The negative November 2020 direct-incurrence opinion does not consider the Veteran’s assertion that his fatigue began during service, the April 2005 private treatment note in which the Veteran reports a snoring problem since 1986, or the May 2005 private treatment record in which the Veteran states that his wife has complained of his snoring for two years and that before her, his shipmates would complain about his snoring. Although a series of medical opinions in June and July 2020 appear to be in support of the Veteran’s claim, the rationale is insufficient to decide this claim. The opinions ultimately point to a 2002 VA examination for rationale, but the Board’s review of the 2002 examination finds no discussion of sleep apnea. Upon remand, a new medical opinion should be obtained that considers the complete record. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s sleep apnea. The clinician should provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea began during service? The clinician must discuss the April 2005 private treatment record in which the Veteran reported snoring since 1986, as well as the May 2005 private treatment note in which the Veteran reported his wife had complained of his snoring for the past two years, and that his shipmates complained about it before his wife did. The clinician must also consider the report in the February 2018 brief that the Veteran contends he has been tired and sleepy during the day since 2002, and the January 2017 VA examination placing the date of diagnosis of sleep apnea in 2002, in spite of the lack of record of a sleep study from that year, and indicating the Veteran’s noticed the Veteran breathing heavily in 2000. (b.) If the answer to the first question is negative, is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is proximately due to his service-connected disabilities or aggravated (defined as any increase in disability) by his service-connected disabilities? Any opinion provided must be supported by a complete rationale. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the medical opinion uses a definition of aggravation as increased beyond its natural progression, obtain a new medical opinion using the definition of aggravation as any increase in disability. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, Counsel 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.