Citation Nr: 21016233 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 18-36 099 DATE: March 22, 2021 ORDER Service connection for a sleep disorder to include obstructive sleep apnea (OSA) as secondary to the service-connected gastroesophageal reflux disease (GERD) is granted. Service connection for vertigo is denied. FINDINGS OF FACT 1. The Veteran’s OSA is aggravated by his service-connected GERD disability. 2. The preponderance of the evidence is against a finding that the Veteran’s vertigo was incurred in or related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA as secondary to the service-connected GERD disability are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107, (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 2. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training from May 1985 to August 1985 and was mobilized to active duty from December 1990 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 and July 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019 the Board remanded the issues of entitlement to service connection for vertigo. In July 2019 the Board denied service connection for OSA. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2020 the Court granted the parties Joint Motion for Partial Remand (JMR) to vacate the July 2019 decision as to the denial of service connection for OSA. In December 2020, the Board remanded the issues of entitlement to service connection for vertigo and entitlement to service connection for OSA. The Board finds that there has been substantial compliance with the prior Board remand instructions and the claims are ripe for adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. OSA Initially, the Board finds that the Veteran has been diagnosed with obstructive sleep apnea. See January 2016 VA OSA examination report. The Veteran has also been awarded service connection for GERD. In a January 2016 VA GERD examination report, the examiner indicated that VA treatment records showed visits noting that the Veteran had “nocturnal reflux symptoms on and off for 2-3 years.” During a June 2018 VA GERD examination report, the examiner specifically indicated that the Veteran’s service-connected GERD disability resulted in dysphagia, pyrosis, reflux, regurgitation, pain, and “sleep disturbance cause by esophageal reflux” occurring 4 or more times a year. The Board finds that the evidence currently of record is at least in equipoise as to whether the Veteran’s OSA was aggravated by the Veteran’s GERD disability. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019) (holding that, for secondary service connection, “aggravation” need not be permanent in nature). Further, VA treatment records include an October 2019 note, where the Veteran was noted to have continued problems with reflux, not alleviated by medication. Upon review of the objective clinical medical evidence and the Veteran’s credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s OSA has been aggravated by his service-connected GERD disability. A VA examiner specifically found that the Veteran’s GERD disability caused sleep disturbance. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that secondary service connection for OSA is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Vertigo The Veteran has a current diagnosis of vertigo. Thus, the first element of Shedden is met. Regarding the second element of Shedden, in-service incurrence, service treatment records are negative for a diagnosis or treatment of vertigo. The Veteran argues to the contrary. He contends that his vertigo was the result of loud sounds from the firing of howitzers. Thus, the second element of Shedden is met. As to the third prong of Shedden, the Veteran has not provided a competent medical opinion to support his claim, and the VA medical examiner provided a negative nexus opinion. In December 2020, the VA medical examiner found that it was less likely as not that the Veteran’s vertigo had its onset in or is otherwise etiologically related to active duty service. The VA examiner determined that the acoustic trauma is not related to etiologically or as an aggravating factor to the Veteran’s development of vertigo. Acoustic trauma is not associated in any way, causally, and/or as an aggravating factor with the development of vertigo/balancing issues as it is separate and anatomically different from the section of the inner ear that is connected to tinnitus and the kind of hearing loss that is associated with acoustic trauma. The Board finds the VA opinion to be highly probative, as it was based on a thorough review of the Veteran’s claim file and an adequate rationale was provided to support the conclusion. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The medical opinion is afforded substantial probative weight. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the lay statements submitted by the Veteran. While the Veteran may sincerely believe that his vertigo was caused by loud sounds from hiring of howitzers, this lay testimony on the etiology of the condition is less probative than the findings of the VA examiner. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the third element of Shedden is not met. The Board is mindful that all reasonable doubt is to be resolved in the Veteran’s favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. See 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, Associate 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.