Citation Nr: 21039669 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-37 898 DATE: July 1, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The Veteran's GERD is aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for GERD as secondary to service-connected PTSD have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1969 to May 1972, including service in the Republic of Vietnam. Unfortunately, in November 2019, during the pendency of this appeal, the Veteran died. His surviving spouse has been substituted in the pending appeal as the appellant. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2015 and June 2017 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2019, the Board remanded these matters for additional development. The Veteran appealed the 70 percent rating assigned for posttraumatic stress disorder (PTSD). Following the Board remand, in August 2020, the RO awarded a 100 percent rating effective March 20, 2017, the date the Veteran filed a claim for an increased rating for PTSD. The RO also granted service connection for right thigh painful scar with an evaluation of 10 percent and right thigh surgical scar excision with a noncompensable evaluation. These grants are effective October 23, 2014, the date the claim for service connection for right thigh and leg condition was received. The RO indicated that these awards were deemed a total grant of benefits sought on appeal. As these represent total grants of the benefits sought during the entire period on appeal with respect to these issues, they are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). 1. Entitlement to service connection for GERD is granted Prior to his death, the Veteran contended that he had GERD as secondary to his service-connected PTSD or to the medications that he took for his service-connected disorders. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, in order to show a 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). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran was diagnosed with GERD no later than December 2009. He has been service-connected for PTSD since April 2011. See February 19, 2010 CAPRI. In October 2019, the VA examiner supplied a medical opinion pursuant to previous remand directives. The examiner stated that GERD was less likely than not incurred in or caused by service or exposure to Agent Orange. The examiner also separately indicated that "PTSD is not a well-known cause of GERD and there are no clinical findings stating his PTSD is due to GERD in the medical records." Notwithstanding all of the above, the examiner ultimately concluded that GERD was at least as likely as not aggravated beyond its natural progression by service-connected PTSD. The examiner cited the 2015 VA medical opinion stating that PTSD had aggravated the Veteran's GERD, and a medical article in support of his opinion. He also stated that "[t]he veteran has had consistent worsening of the GERD symptoms after PTSD diagnosis." The Board concludes that the proffered opinion is adequate and entitled to significant probative weight, because it is based upon a detailed analysis of the Veteran's medical records throughout the appellate history of this claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App.120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Specifically, the October 2019 opinion adequately establishes a finding of secondary service connection, and specifically, that the Veteran's current diagnosis of GERD has been aggravated by his service-connected PTSD. Finally, the Board notes in passing that even if the examiner's rationale might otherwise be characterized as inadequate for being insufficiently supported by medical literature or the evidence of record, the Board would then conclude that the evidence is at least in relative equipoise to support a finding of secondary aggravation, and that the Board is prohibited from remanding for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 7 Vet. App. 305, 312 (2003). Moreover, there are no other probative etiology opinions of record addressing secondary service connection on an aggravation basis. For the foregoing reasons as articulated above, service connection for GERD, which was aggravated by service-connected PTSD, is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder is remanded Prior to his death, the Veteran contended that he has a cervical spine disorder that had its onset during his active duty service. Specifically, he alleged that his symptoms began in June 1970 when he was in Vietnam, unloading and carrying shell ammunition supplies, and that the condition had gotten worse. The Board regrets that another remand is warranted due to an inadequate medical opinion. In the Board's May 2019 remand, the Board found that the June 2017 VA medical opinion was inadequate because the VA examiner based his opinion solely on the lack of documented treatment for a neck condition in the service treatment records. The examiner also did not appear to accept as credible the Veteran's lay statements regarding experiencing neck pain in service in Vietnam which gradually got worse over time. On remand, the Board directed that the VA examiner discuss the credible lay statements of the Veteran, a combat veteran, regarding his neck injury in June 1970 and his March 1972 car accident. In the October 2019 VA medical examination, the examiner diagnosed cervical strain, spondylolisthesis, and stenosis. The examiner based his negative nexus opinion on there being "no findings in the STR of a neck injury and/or issue that occurred during service." Thus, the October 2019 VA examiner also relied on the lack of contemporaneous medical records to conclude that service connection was not warranted. Additionally, the VA examiner did not discuss the Veteran's lay contentions regarding his neck injury in June 1970, or his March 1972 car accident. On remand, the Board will direct an addendum opinion that discusses the Veteran's contentions as to in-service injury and onset be provided. 2. Entitlement to service connection for hypertension is remanded The Veteran contended that he had hypertension that had its onset during his active duty service and was secondary to his service-connected PTSD and coronary artery disease (CAD), or due to medications that he took for his service-connected disabilities. In the Board's May 2019 remand, the Board found that the January 2015 VA medical opinion was inadequate because the VA examiner failed to address whether the Veteran's PTSD had aggravated his hypertension. Additionally, she specifically wrote that hypertension could be caused by disorders of the arteries and heart, and the Veteran is already service connected for CAD. On remand, the Board directed that the VA examiner address (1) whether hypertension had its onset during, or is otherwise related to any disease or injury in the claimant's service, including due to exposure to herbicide agents in Vietnam; and, (2) was caused or is aggravated (worsened beyond the natural progression) by the Veteran's service-connected disabilities, which include CAD, PTSD, lumbar spine strain, bilateral lower extremity radiculopathy, and tinnitus. The examiner was directed to discuss the January 2015 VA medical opinion stating that hypertension is caused by conditions that affect the arteries and heart and whether that indicates that CAD has caused or aggravated the Veteran's hypertension. In the October 2019 VA medical opinion, the examiner based the negative nexus opinion regarding direct service connection on there being "no findings in the STR of [hypertension] that occurred during service." Therefore, the October 2019 VA examiner relied on the lack of contemporaneous medical records to conclude that service connection was not warranted. Additionally, regarding secondary service connection, the VA examiner did not discuss the January 2015 VA medical opinion statement indicating hypertension is caused by conditions that affect the arteries and heart. The examiner also did not address whether hypertension was due to medications that the Veteran took for his service-connected disabilities. In June 2021, the appellant's representative cited an article indicating an association between hypertension and herbicide exposure. On remand, the Board will direct an addendum opinion that discusses the Veteran's aforementioned article, as well as his contentions as to in-service incurrence and onset, to include his theory that hypertension was secondary to medications that he took for service-connected disabilities. 3. Entitlement to service connection for obstructive sleep apnea is remanded The Veteran contended that he had sleep apnea or other sleep disorder that was either directly related to service or secondary to his service-connected PTSD. On remand in May 2019, the Board directed that the VA examiner address (1) the Veteran's current diagnoses pertaining to any sleep disorder; (2) for all disorders found, whether it is at least as likely as not that the disorder had its onset during, or is otherwise related to any disease or injury in the claimant's service; and, (3) for all disorders found, whether it is at least as likely as not that the disorder was caused or is aggravated by the Veteran's service-connected disabilities. In the October 2019 VA medical examination, the examiner diagnosed the Veteran with obstructive sleep apnea, which was confirmed by a 2015 sleep study. However, the examiner did not address whether it was at least as likely as not that sleep apnea was related to the Veteran's service. With regard to whether sleep apnea was aggravated by PTSD, the examiner merely listed the risk factors for obstructive sleep apnea and indicated it is unclear whether there is an increased prevalence of obstructive sleep apnea in PTSD. The examiner based this finding on one cited medical publication. As the opinion lacks a detailed and reasoned rationale, it is insufficient to deny service connection. In a June 2021 brief, the appellant's representative cited several articles indicating a link between sleep apnea and PTSD. On remand, the Board will direct an addendum opinion that addresses service connection on a direct basis, as well as the aforementioned articles indicating a link between sleep apnea and PTSD. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to address the nature and etiology of cervical strain, spondylolisthesis, and stenosis. The examiner must review the claim file. The examiner must specify in the report that these records have been reviewed. The examiner should then address: (a) Whether the Veteran's cervical strain, spondylolisthesis, and stenosis (cervical spine disability) at least as likely as not (50 percent or greater probability) had its onset during, or was otherwise related to any disease or injury in the claimant's service? The examiner is requested to specifically discuss the credible lay statements of the Veteran, who was a combat veteran, regarding injuring his neck in June 1970 while unloading and carrying ammunition in Vietnam and his assertions that he had progressively worsening neck pain since that time. Please also discuss the Veteran's March 1972 car accident. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. Obtain an addendum opinion to address the nature and etiology of the Veteran's hypertension. The examiner must review the claim files. The examiner must specify in the report that these records have been reviewed. The examiner should then address: (a) Was it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its onset during, or as otherwise related to any disease or injury in the claimant's service, including due to exposure to herbicide agents in Vietnam? (b) Was it at least as likely as not that the Veteran's hypertension (i) was caused or (ii) is was aggravated (worsened beyond the natural progression) by the Veteran's service-connected disabilities, which include coronary artery disease, PTSD, lumbar spine strain, bilateral lower extremity radiculopathy, tinnitus, and gastroesophageal reflux disease? The examiner should specifically discuss the January 2015 medical opinion stating that hypertension is caused by conditions that affect the arteries and heart and whether that indicates that coronary artery disease had caused or aggravated the Veteran's hypertension, as well as the article cited in the Veteran's representative's brief received in June 2021 supporting a link between hypertension and herbicide exposure. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. Obtain an addendum opinion to address the nature and etiology of the Veteran's diagnosed obstructive sleep apnea. The examiner must review the claim file. The examiner must specify in the report that these records have been reviewed. The examiner should then address: (a) Whether it was at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea had its onset during, or was otherwise related to any disease or injury in the claimant's service? (b) Whether it was at least as likely as not that obstructive sleep apnea (i) was caused or (ii) was aggravated (worsened beyond the natural progression) by the Veteran's service-connected disabilities, which include coronary artery disease, PTSD, lumbar spine strain, bilateral lower extremity radiculopathy, tinnitus, and gastroesophageal reflux disease? The examiner should specifically discuss the December 2015 private medical opinion stating that PTSD had aggravated the Veteran's obstructive sleep apnea and that medical studies, including those cited in the Veteran's representative's appellate brief received in June 2021 have shown a link between psychiatric disorders, obesity, and sleep apnea. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.