Citation Nr: 21023150 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-05 379 DATE: April 20, 2021 REMANDED Service connection for gastroesophageal reflux disease (GERD) is remanded. Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service from August 2002 to March 2010, to include service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before a member of the Board in December 2019, but did not appear, provide good cause for failing to appear, or request rescheduling. As such, his hearing request was deemed withdrawn. 38 C.F.R. § 20.704(d). With regard to the characterization of the issue of service connection for GERD, the Board notes that the Veteran filed a new claim for service connection for acid reflux in his October 2014 VA Form 21-526b. The RO characterized this claim as an application to reopen the previously denied claim of entitlement to service connection for gastroenteritis. The Board recognizes that a claim for a disability includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). However, a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In reconciling these holdings, the United States Court of Appeals for Veterans Claims (Court) held that, when varying diagnoses are involved, in considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, “the focus of the Board’s analysis must be on whether the evidence presented truly amounts to a new claim ’based upon distinctly diagnosed diseases or injuries’ or whether it is evidence tending to substantiate an element of a previously adjudicated matter.” Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs, 520 F.3d at 1337). Despite the fact that the RO, in the rating decision on appeal, reopened the gastroenteritis claim and characterized the Veteran’s claim of entitlement to service connection for acid reflux as gastroenteritis (claimed as acid reflux/ GERD), the Board finds that the issue of entitlement to service connection for an acid reflux condition is a new claim, separate and distinct from the Veteran’s March 2010 claim for gastroenteritis. The March 2010 claim dealt specifically with the October 2008 gastroenteritis diagnosis and associated symptoms of vomiting and loss of appetite. By contrast, the evidence developed during the processing of the instant claim reflects that the Veteran has also been diagnosed with GERD for which he seeks service connection. See February 2015 VA Primary Care Note. Additionally, a February 2015 VA examiner opined that it is less likely than not that the Veteran’s GERD diagnosis has its origin in the isolated episode of infectious gastroenteritis because “[t]he two conditions are very different from each other.” Specifically, it was noted that gastroenteritis is the result of an infection agent affecting the stomach and intestines, whereas GERD is a relative weakness of the sphincter mechanism at the junction between the esophagus and the stomach. Thus, under Boggs and Velez, because the Veteran has two separate gastrological diagnoses, the Board finds that the Veteran’s claim for GERD, claimed as acid reflux, is a new claim and does not require a showing of new and material evidence. In light of the foregoing, the Board has recharacterized the issue for consideration as reflected on the title page to more accurately reflect the distinct disorder for which the Veteran seeks service connection. 1. Service connection for GERD is remanded. The Veteran seeks to establish service connection for his GERD. An April 2014 VA medical record indicates that the Veteran reported heartburn with reflux and occasional chocking sensation. The Veteran asserted that he had these symptoms since he was in the Army; however, he did not have a prescription or testing done at that time. A February 2015 VA examiner opined that the Veteran’s GERD was less likely than not related to or originated in the isolated episode of infectious gastroenteritis documented in his service treatment records (STRs). The examiner concluded that these two conditions are very different from each other and are inherently not related. However, the examiner did not provide an opinion as to whether the Veteran’s GERD is directly related to his active service or address the Veteran’s contention that his GERD symptoms began in service. As such, the February 2015 VA opinion is incomplete, and a remand for an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Service connection for sleep apnea is remanded. The Veteran also seeks service connection for sleep apnea. His STRs show multiple sleep-related complaints while on active duty. The Veteran underwent two sleep studies in November 2009 and March 2010 both of which were negative for sleep apnea. A July 2014 VA sleep study demonstrated findings suggestive of mild obstructive sleep apnea. A February 2015 VA examiner opined that the Veteran’s sleep apnea was less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner reasoned that obstructive sleep apnea is a disease with clear and specific etiology and diagnosis and is not to be caused by a specific exposure event experienced by the Veteran during service in Southwest Asia. Another February 2015 VA examiner opined that it was less likely than not that the Veteran’s current sleep apnea was related to active service. The examiner reasoned that the November 2009 and July 2014 sleep studies do not support a diagnosis of sleep apnea and that the sleep disturbance the Veteran reported in service was associated with psychologic distress or with back pain. In December 2015, a VA examiner opined that it was less likely than not that the Veteran’s sleep apnea incurred in or was caused by service. The examiner reasoned that the record reflects that the Veteran experienced significant weight gain in the years following discharge from service. It was noted that when the Veteran was diagnosed with sleep apnea in July 2014, his body mass index (BMI) was 36, but at the time of the 2009 and 2010 sleep studies, his BMI was around 23. The examiner explained that since the Veteran’s in-service sleep studies were negative for sleep apnea, his sleep apnea diagnosis was first documented 4 years after discharge from service, and the evidence suggests significant weight gain after service. Given the above, the Board finds that further evidentiary development is necessary to help determine whether the Veteran’s sleep apnea is related to his active service or to a service-connected disability. First, while the July 18, 2014 VA sleep medicine diagnostic study report noted that the Veteran’s BMI was 36, another VA sleep medicine diagnostic study report dated the same day noted that his BMI was 26. See also July 15, 2014 sleep study report (noting a BMI of 25.7). Moreover, the Veteran reported that his weight did increase from the time between service and his sleep studies; however, he asserted that his weight and BMI were still within normal ranges. According the Veteran the benefit of the doubt, the Board finds that the July 15, 2014 BMI of 36 appears to be a typographical error, and that he had a BMI of 26 during the July 2014 sleep study. As such, the Board finds that the December 2015 VA opinion is inadequate because it is based on an inaccurate premise that the Veteran’s BMI was 36 at the time of the July 2014 VA sleep study. A remand is therefore required for an addendum opinion. The record also reflects that the Veteran is service connected for posttraumatic stress disorder (PTSD). In this regard, as the February 2015 VA examiner noted that the Veteran’s sleep disturbances were in-part associated with psychologic distress. As such, remand for an addendum opinion is also required to help determine whether the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran may have received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange for the claims file to be reviewed by the VA examiner who prepared the February 2015 VA GERD opinion (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s GERD had its onset in, or is otherwise attributable to, the his active service or any incident therein. In providing this opinion, the examiner is requested to address the Veteran’s contention that his GERD symptoms (heartburn with reflux and occasional chocking sensation) began in service. A complete medical rationale for all opinions expressed must be provided. 4. Also, arrange for the claims file to be reviewed by one of the VA examiners who prepared the February 2015 and December 2015 VA sleep apnea opinions (or a suitable substitute if one of those VA examiners are unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s sleep apnea had its onset in, or is otherwise attributable to, the his active service or any incident therein. In providing this opinion, the examiner should note that the Board has found that the Veteran’s BMI at the time of the July 2014 sleep study was 26 and not 36. If the examiner concludes that the Veteran’s sleep apnea did not start in service and is not otherwise related to service, the examiner is requested to opine as to whether it is at least as likely as not (i.e., at least a 50 percent probability or greater) that the Veteran’s sleep apnea was (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the service-connected PTSD. In providing this opinion, the examiner is requested to comment on the significance of the February 2015 VA examiner’s notation that the Veteran’s sleep disturbances the Veteran reported in service were associated with psychologic distress, as well as the notation in the November 2009 sleep study that the Veteran’s excessive daytime sleepiness is likely due to underlying PTSD/depression and medication effects. A complete medical rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.