Citation Nr: 21027120 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-05 827 DATE: May 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for gastroesophageal disease (GERD) is granted. Entitlement to service connection for hypothyroidism is denied. FINDINGS OF FACT 1. The most probative evidence shows that the Veteran's obstructive sleep apnea had its onset during active duty service. 2. The most probative evidence shows that the Veteran's GERD had its onset during active duty service. 3. A preponderance of the evidence of record is against finding that the Veteran's hypothyroidism had its onset during active duty service or is otherwise related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for GERD are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for hypothyroidism are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1990 to July 1993, from October 2001 to October 2002, and from January 2005 to June 2005. He was a member of the Army National Guard from September 1993 to May 2012. He had active duty for training for the period of January 14, 2005, to June 7, 2005. This matter comes to the Board of Veterans' Appeals (Board) on an appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). The Veteran and his wife testified during a videoconference hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing has been associated with the Veteran's claims file. Service Connection Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 1. Entitlement to service connection for obstructive sleep apnea The Veteran has a current diagnosis of obstructive sleep apnea pursuant to an April 2015 sleep study; he uses a CPAP machine. The Veteran contends that his diagnosed sleep apnea began during his period of active service. The Veteran submitted a statement in May 2016 that he has had sleep apnea since his period of active service; however he was afraid to pursue a diagnosis since his job with the DOD was contingent on his service with the National Guard. He stated that "it just became part of my life and I would deal with [it] as best I could." He stated that sleep apnea symptoms began to affect his daily life and he sought treatment in 2015. The Veteran stated that he broke his nose during service while running an obstacle course. He stated that evidence of this event includes the "obvious look of my nose" and "difficulty breathing." There is also a statement, summarized below, from a servicemember who witnessed the incident. In May 2016, the Veteran submitted a statement from a service member who described an event occurring during active duty service in 2001 and 2002 at Fort Bragg. The service member stated that he was deployed to Ft. Bragg in 2001 to 2002 with the Veteran and was a member of his squad, and that during a normal training day, they ran an obstacle course for training. One of the first obstacles was the log walk. The Veteran was the first to cross the log walk and the logs were a little wet. About halfway across, the Veteran slipped off the log and landed face first on the log. He tried to catch himself with his hands but his face and eye area took most of the fall. His nose started bleeding and he was in pain. The Veteran also submitted a statement from another service member who described the Veteran's symptoms when he was deployed to Fort Bragg in support of Operation Noble Eagle in 2001-2002. After staying in open bay barracks, they were moved to two-man rooms and he was assigned a room with the Veteran. He stated that at night the Veteran would snore so loud it would awaken him. He stated that he would "wake the Veteran up" and "try to get him to change positions so he could get some rest." Sometimes when the Veteran was asleep, the service member would notice that the Veteran would sometimes experience respiratory disruption and would not move or make a sound for long periods of time. Sometimes during the day the Veteran would go to the room to rest during lunch because he was tired. A third service member submitted a statement that indicated that while deployed in support of Operation Noble Eagle in 2001-2002, he was a team member of the Veteran's squad. They slept in close proximity to one another while in open bay barracks. He recalled having to awaken the Veteran due to his loud snoring. Squad members would argue over who would have to bunk with the Veteran because his snoring was so bad. He stated he would lay awake at night listening to the snoring and would also notice his respiratory disruption. He would jerk the Veteran awake sometimes or the service member would kick the bunk to improve his respiration. He stated that he spoke to the Veteran about it and advised him to get it checked out over concern for this condition. The Veteran also submitted a statement from his wife in May 2016. She stated that she is a respiratory therapist with an active license in Kentucky and Florida. She stated that she knew that the Veteran "needed to see someone" but they were reluctant because of fear of the effect it would have on his military career. She stated that several times a night the Veteran would experience respiratory disruption and she would nudge him or kick him to improve his respiration. Often, she had to sleep in another room because his snoring was so loud. During the daytime he was often sleepy and several times he fell asleep while driving. She would constantly ask him if he was awake and okay to drive. She stated that she had never before seen anyone who "could sleep standing up." She stated that one morning when he was home on a pass in 2001, she found him in the bathroom asleep sitting on the floor. He was sitting on the floor to put his boots on and fell sleep. She further stated that "they tried breathing strips, pillows under the back, and mouth guards to attempt to fix the breathing issues." During the March 2021 hearing, the Veteran testified that he found out about the sleep apnea in Fort Bragg and during his exit medical examination, he spoke with a physician's assistant who told him if he put in for a sleep study and it showed sleep apnea, he would be dismissed from service. At that time, the Veteran worked as a dual status technician for the Department of Defense, which required him to be in the military or National Guard. If he failed the sleep apnea test or was diagnosed with sleep apnea, he would be dismissed from service and also lose his full-time job. The Veteran indicated that he had symptoms of disruptive sleep issues during service including snoring and respiratory disruption that continued from service and progressively worsened until his diagnosis in 2015. He was prescribed and now uses a CPAP machine, which has helped alleviate his symptoms. If he does not use CPAP, he feels the effects, including sleepiness all the time. The Veteran's wife testified that she has been a respiratory therapist for 23 years and is expertly familiar with sleep apnea, including symptoms and problems caused by it. She indicated that she first noticed a sleeping issue with the Veteran when he came home on leave while he was on active duty in Fort Bragg (2001-2002). Prior to this active duty deployment, she "never noticed any issue with breathing issues at night, snoring, or daytime somnolence." His symptoms continued when he came home on leave for weekends and after his active duty concluded. The Veteran 's wife testified that his symptoms began in the 2001 to 2002 time period and she noticed his symptoms worsened thereafter. She was concerned with the daytime somnolence affecting his driving. She testified that he would experience respiratory disruption at night and she would elbow him or kick him. They tried using a wedge on the bed. She stated that in 2015 she convinced the Veteran to get a sleep study done, which confirmed a diagnosis of sleep apnea. The Board finds the Veteran's testimony (and his wife's) regarding the delay in seeking a sleep study to be a compelling explanation in that he did not want to leave National Guard service, which in turn would have caused him to lose his job. The Board finds that the competent, credible evidence of record indicates that the Veteran began experiencing symptoms of sleep apnea during a period of active duty service and that those symptoms continued thereafter. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran's wife's statement and testimony may be considered competent medical evidence based on her profession as a licensed respiratory therapist and the Board finds this evidence to be credible and highly probative. 38 C.F.R. § 3.303(d). The Board further finds the statements provided by fellow service members, who are competent to provide their observation of symptoms, to be credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim for service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Upon reviewing the medical evidence, lay statements, and hearing testimony, and resolving reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, entitlement to service connection for obstructive sleep apnea is warranted. 2. Entitlement to service connection for gastroesophageal disease (GERD) The Veteran's medical records indicate a diagnosis of GERD, thereby meeting the first element required to establish service connection. He has asserted that his GERD resulted from an in-service event that occurred when he and other members of his company drank water that was contaminated by dead animals. The criteria to establish service connection for disabilities incurred during periods of Active Duty for Training (ACDUTRA) and Inactive Duty Training (INACDUTRA) differ from those pertaining to active duty service. VA regulation states that during a period of Active Duty for Training, service connection is warranted for any disease or injury incurred or aggravated in the line of duty. During a period of Inactive Duty for Training, such as normal National Guard or Reserve weekend and summer drills, service connection is warranted only for injuries (not diseases) incurred or aggravated in the line of duty. Such injuries must be verified by a properly executed Line of Duty Determination. While service connection may be established for disabilities resulting from injuries incurred on periods of ACDUTRA and INACDUTRA, service connection is warranted for diseases initially manifesting on periods of ACDUTRA only. An informal Line of Duty Determination dated June 8, 1999, was associated with the Veteran's file in December 2016. This document indicated that: On or about June 6, 1999, at WHFRTC [the Veteran] showed the following symptoms [of] headache, nausea, vomiting, thin bowel movement, dizziness, and [temperature]. These symptoms grew worse through the day. This condition has spread through the company. He was treated by the aid station and WHFRTC dispensary and assigned to quarters. Along with the informal line of duty determination submitted in in December 2016, the Veteran submitted a sworn statement dated June 7, 1999, as follows: "On the morning of 6/7/1998 I had [diarrhea]. I went twice in two hours. I was told that if anyone had sick feelings or [diarrhea] to report to the C.P. I reported to the C.P." He also submitted a July 2002 service medical examination that noted frequent indigestion or heartburn and stomach, liver, or intestinal trouble or ulcer. Documentation of approval of the June 1999 informal Line of Duty Determination was associated with the file in March 2021. Therefore, a properly executed Line of Duty Determination is of record. This satisfies the second element required to establish service connection, an in-service event, injury, or incurrence. The Veteran and his wife gave sworn testimony at a hearing before the undersigned on in March 2021. The Veteran's representative noted the submission of a line-of-duty investigation that was signed off and approved on his chain of command due to a water contamination issue that his unit experienced at Wendall Lake, Kentucky during active duty training in 1998. The Veteran testified that in the water contamination incident his whole platoon was involved. Due to water contamination many had symptoms of "crazy bowel movements, stomach upset," and really bad reflux. They were quarantined for a day or two. Medics were brought in to treat them and provided medication for bowel and digestive issues. The Veteran stated that he was told that the water they were drinking from the water supply for the area was fouled by dead animals. The Veteran stated that his GERD symptoms began immediately after drinking the contaminated water. He self-medicated with over the counter medication until it became bad enough that he sought medical help from a doctor who diagnosed him. He continues to use prescription medication to alleviate symptoms. He started experiencing these symptoms during service and they continued over the years and progressively got worse. He has to watch his diet to avoid symptoms. The Veteran's wife testified that they met in 1993 and she knew him when his symptoms began in 1998, and have continued ever since. The Veteran indicated that the water contamination incident occurred during active duty for training. Medical records show the Veteran was prescribed rabeprazole in April 2005. VA medical records in June 2011 show Omeprazole is prescribed. June 2012 medical records show medication prescribed for a stomach or digestive problem. Heartburn is noted. Omeprazole was prescribed in March 2015. VA medical records dated March and April 2016 note the Veteran was prescribed Omeprazole for GERD. A nexus opinion linking the Veteran's drinking of contaminated water during service to his GERD diagnosis is not of record. However, the Board finds that establishing a continuity of symptomatology following the in-service event that was the subject of a properly executed Line of Duty Determination constitutes strong circumstantial evidence sufficient to establish service connection. Lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Giving the Veteran the benefit of the doubt, and given evidence of a current diagnosis of GERD with medication prescribed, the Line of Duty Determination, and the Veteran's (and his spouse's) credible testimony regarding his continuity of symptoms following his in-service injury, the Board finds that entitlement to service connection is also warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for hypothyroidism During a period of Active Duty for Training, service connection is warranted for any disease or injury incurred or aggravated in the line of duty. During a period of Inactive Duty for Training, such as normal National Guard or Reserve weekend and summer drills, service connection is warranted only for injuries (not diseases) incurred or aggravated in the line of duty. Here, there is no Line of Duty Determination for hypothyroidism in the record. Nor is there a diagnosis in the file confirming hypothyroidism during active duty service. The Board notes that the only recorded thyroid stimulating hormone (TSH) level of record is dated April 26, 2005, and indicates a level of 0.054 in a reference range of 0.35-5.50. A low TSH level does not indicate hypothyroidism. Service treatment records dated August 2005 do not note thyroid disease or medication. There is no diagnosis of hypothyroidism in the Veteran's service treatment records or in other medical records in the Veteran's file until 2015. In March 2015, a VA primary care provider noted a high TSH level indicating possible low thyroid function. An April 2016 progress note indicates the Veteran was prescribed medication for hypothyroidism. The evidence of record does not support a finding that the Veteran's hypothyroidism began during active duty service. The TSH level demonstrated during service also does not warrant the submission of this matter to an examiner for an opinion as to the etiology of this claimed disability. During the March 2021 hearing, the Veteran indicated that he was diagnosed with hypothyroidism during service in 2005 during a six-month term of active duty for training, and prescribed medication, which has unfortunately not been confirmed by his service treatment records. He continues treatment from the VA and continues to receive medication for hypothyroidism. He believes that his TSH levels were outside of the normal range even prior to 2005, during earlier active-duty time periods. He experiences symptoms of weight gain and if he forgets to take his medication, he reported feeling "a little cloudy in the head." While the Veteran has a current diagnosis of hypothyroidism as of 2015, there is no medical evidence currently in the file that this disorder had its onset during his active duty service or is otherwise related to his active duty service. The Board notes that the duty to assist in the development of the Veteran's claim is not a "one-way street," Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and if there are any additional private medical records supporting his claim, the Veteran has the ultimate burden to provide such records. The Board therefore must unfortunately find that the preponderance of the evidence is against the Veteran's claim for hypothyroidism. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Therefore, service connection for hypothyroidism is not warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.