Citation Nr: 21030266 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-51 482 DATE: May 18, 2021 ORDER An increased 30 percent rating for dyspepsia is granted. Entitlement to service connection for sleep apnea secondary to service-connected dyspepsia is granted. REMANDED Entitlement to service connection for a deviated septum is remanded. Entitlement to service connection for bilateral dry eye syndrome is remanded. FINDINGS OF FACT 1. The Veteran's dyspepsia is productive of persistently recurrent epigastric distress with pyrosis and regurgitation. 2. The Veteran's obstructive sleep apnea had its initial clinical onset during active service. CONCLUSIONS OF LAW 1. The criteria for an increased 30 percent rating for dyspepsia are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Diagnostic Code 7346. 2. The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 2001 to September 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2017, June 2017, and March 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In furtherance of these matters, there was a February 2021 Board hearing before the undersigned Veterans Law Judge (VLJ), and the transcript is of record. 1. An increased 30 percent rating for dyspepsia is granted. The Veteran was granted service connection for dyspepsia with a noncompensable rating in June 2009. He did not appeal that decision and the decision became final in June 2010. See 38 C.F.R. §§ 20.302, 20.1103. On May 12, 2017, the Veteran filed a claim of entitlement to a compensable rating for dyspepsia which was denied in June 2017. Dyspepsia is not specifically listed in the rating schedule. Therefore, it is rated by analogy to a disability in which the functions affected, anatomical localization, and symptoms are closely related; here, hiatal hernia. A ten percent rating is assigned when two or more symptoms for the 30 percent evaluation of less severity is present. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 30 percent disability rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health is present. Id. Finally, a maximum 60 percent rating is assigned when symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health is present. Here, the Veteran's dyspepsia presents with symptoms of some dysphagia, pyrosis, and regurgitation with shoulder discomfort a couple of times per week. See 2/1/2021 Hearing Transcript; 6/2/2017 C&P Examination; 5/11/2009 C&P Examination. As such, the criteria for an increased 30 percent rating are met for the entire period on appeal. The criteria for an even higher 60 percent rating, however, are not met, as the Veteran's dyspepsia is not productive of severe impairment of health; although he experiences occasional pain, he does not experience vomiting, hematemesis or melena with moderate anemia, and there has been no material weight loss. Resolving all doubt in favor of the Veteran, the Board concludes that an increased 30 percent rating, but no higher, is warranted. 2. Entitlement to service connection for sleep apnea is granted. Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be granted where a disability is proximately due to or aggravated by an already service-connected disability. 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability; and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In this case, the Veteran has a current obstructive sleep apnea (OSA) diagnosis and he reports that his sleep disturbance symptoms began in service and continued until the present. See 2/21/2021 Transcript Hearing; 4/9/2018 Medical Treatment Record. He is competent to report having experienced sleep disturbance while in service, and the Board finds his report of continued symptoms since service that became progressively worse credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); Jefferson v. Principi, 271 F.3d 1072 (Fed.Cir. 2001). For this matter, the Veteran was afforded one VA Examination. Although the examiner opined that the Veteran's service-connected dyspepsia with history of GERD did not cause his OSA, the Board finds that opinion inadequate and affords it no probative weight. Not only was the opinion conclusory, it failed to address whether the Veteran's service-connected dyspepsia could have aggravated his OSA. See 3/6/2017 C&P Examination; El Amin v. Shinseki, 26 Vet. App. 140 (2013) (a medical opinion regarding secondary service connection must address both causation and aggravation). In contrast, a private medical opinion of record noted that it is possible that the Veteran developed OSA secondary to many years of reflux. The Board similarly affords that opinion no probative weight because of its speculative nature. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran submitted a number of medical articles noting comorbidity between reflux and sleep apnea and the possible attribution of one condition to the other. Notably, one article states, "[s]ome researchers believe that obstructive sleep apnea results in airway pressure changes that can cause reflux to occur, yet other researchers believe that the reflux of acids may result in spasms of the vocal cords that can then lead to sleep apnea." See 1/27/2017 Correspondence. However, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran's report of having experienced sleep disturbances related to reflux while in service which continued to worsen until he sought treatment, coupled with the inconclusive state of the research connecting the two conditions, preponderates in his favor. Therefore, entitlement to service connection for OSA is granted. REASONS FOR REMAND 1. Entitlement to service connection for deviated septum is remanded. VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient evidence to make a decision on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While a deviated septum may have congenital origins or may be acquired due to trauma, only a trauma acquired deviated septum is entitled to service connection. 38 C.F.R. § 4.97 Diagnostic Code 6502. In this case, the Veteran's service treatment records do not reflect any injury that could have caused a deviated septum nor does the Veteran recall any in-service trauma that could have led to such an injury. See 2/1/2021 Board Hearing. However, a June 2008 CT scan of the Veteran's sinus shows evidence of an acquired deviated septum. See 2/9/2017 Service Treatment Record. Thus, remand is necessary to obtain a VA examination to clarify the origins of the Veteran's deviated septum. 2. Entitlement to service connection for bilateral dry eye syndrome is remanded. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here the Veteran was afforded one VA examination in furtherance of his claim of entitlement to service connection for bilateral dry eyes. That examiner provided a negative nexus opinion and further opined that the Veteran's Photorefractive Keratectomy (PRK) procedure (obtained while in service) and use of a CPAP machine likely contributed to the Veteran's dry eyes. See 3/7/2018 C&P Examination. However, the examiner did not consider the evidence of record that notes a history of dry eyes preceding the Veteran's PRK procedure. See 3/5/2008 Service Treatment Record; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (opinions that do not consider all the relevant evidence of record are inadequate for VA purposes). Thus, remand is necessary to obtain an addendum VA opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his deviated septum. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, the clinician should provide an opinion regarding the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's deviated septum had its onset during the Veteran's active service or is otherwise related to active service? In addressing this question, please discuss (1) the June 2008 medical report establishing acquired deviated septum, and (2) whether acquired is synonymous with trauma induced. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. Return the claims file to the VA examiner who conducted the March 7, 2018 C&P examination for bilateral dry eyes, if available. If that examiner is not available, send the claims file to another examiner to address the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral dry eyes had its onset during the Veteran's active service or is otherwise related to active service? In addressing this question, please address the history of dry eyes referenced on January 4, 2005 in the March 5, 2008 service treatment record. Please also address whether it is at least as likely as not that the Veteran's use of a CPAP for his service-connected OSA causes or aggravates his bilateral dry eyes. In answering this question, please specifically consider and address the Veteran's history of dry eyes preceding his PRK procedure. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.