Citation Nr: 21042082 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-05 159 DATE: July 12, 2021 ORDER Entitlement to service connection for gastrointestinal disorders, claimed as irritable bowel syndrome and gastritis, to include as secondary to a service-connected disability, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, it is at least as likely as not that his gastritis and irritable bowel syndrome are causally related to service, to include as secondary to his service-connected posttraumatic stress disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for gastrointestinal disorders, claimed as irritable bowel syndrome and gastritis, to include as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1982 to October 1985 and from November 1987 to September 1992. The Board of Veterans' Appeals (Board) remanded these matters in January 2019 to obtain updated medical records and medical opinions. The Board is satisfied that there was substantial compliance with the portions of the remand pertaining to the Veteran's service connection for gastrointestinal disorders. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). The Agency of Original Jurisdiction conducted appropriate efforts to develop the record and to provide the Veteran VA examinations as directed in the January 2019 Board remand. However, there was not substantial compliance with the portion of the remand pertaining to the claim for service connection for sleep apnea, as the examiners did not discuss the Veteran's lay statements or the medical literature cited by the Veteran, and did not provide adequate supporting rationale for the opinions. Unfortunately, an additional remand to address this matter is necessary. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 1. Entitlement to service connection for gastrointestinal disorders, claimed as irritable bowel syndrome and gastritis, to include as secondary to a service-connected disability The Veteran contends that his gastrointestinal disorders, to include gastritis and irritable bowel syndrome (IBS), are related to active duty service. Specifically, he contends that these disorders are either directly related to the gastrointestinal symptoms for which he received treatment during service, or they are caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). After considering the evidence of record, the Board determines that service connection for gastrointestinal disorders, to include gastritis and IBS, is warranted. First, the Veteran's medical records include a diagnosis of gastritis and irritable colon in November 1987, as well as a diagnosis of irritable bowel syndrome in March 2015. The medical records also note that he has experienced symptoms for more than 15 years. Next, the Veteran underwent an April 2020 VA examination where the examiner opined that the Veteran's current gastritis and irritable bowel syndrome are at least as likely as not related to his treatment for gastritis and irritable colon during service in November 1987. The examiner further noted that the stress of being deployed was likely the main cause of his gastrointestinal disorder and cited medical literature to support this opinion. The study notes that such an impact on the gastrointestinal system can have effects for decades. Therefore, resolving reasonable doubt in favor of the Veteran, the record demonstrates that his gastritis and irritable bowel syndrome were caused by the stress of active duty service. In arriving at this conclusion, the Board acknowledges the negative evidence, including the opinions of the December 2011, October 2012, December 2016, and January 2020 VA examiners. However, these examiners either incorrectly stated the Veteran does not have gastrointestinal disorders despite medical evidence of diagnoses, or they did not address his treatment for such conditions in service, as well as his lay statements and medical literature he submitted in support of his claim when discussing their opinions. As such, the Board finds they have little probative value. As a result, the Board finds the evidence at least in equipoise and service connection is warranted. 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. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. The Veteran contends that his obstructive sleep apnea is directly related to active duty service or is secondary to his service-connected PTSD or treatment for his service-connected disabilities. This matter was remanded by the Board in January 2019 because the Veteran underwent a VA examination in December 2016, but the examiner's opinion was found to be inadequate. Specifically, the examiner did not explain its supporting rationale in opining that the Veteran's sleep apnea is not related to PTSD because PTSD is not listed as an etiological factor for sleep apnea. However, the Veteran contends that he experienced sleep apnea symptoms since service, and he referenced a study in his August 2018 brief that suggested a correlation between veterans with PTSD and sleep apnea. The Board requested in its remand that a VA examiner consider and discuss both the Veteran's lay statements and the study the Veteran referenced in August 2018. Although the Board regrets further delay, the matter must be remanded for an addendum opinion. Specifically, the Veteran underwent a VA examination in January 2020, and, while the examiner listed specific medical literature that was reviewed in forming the negative nexus opinion between sleep apnea and PTSD, the opinion never mentioned the study submitted by the Veteran in August 2018 or discussed why it was deficient. Furthermore, the examiner stated: "[a]lthough individual risk factors are known, the precise pathophysiological pathways leading to upper airway obstruction in patients with obstructive sleep apnea remain elusive." Again, there is no discussion of the relevant study submitted by the Veteran. Additionally, the Veteran underwent another VA examination in April 2020, but the examination was similarly deficient. In the rationale for providing a negative nexus opinion for direct service connection, the examiner simply stated that, because there was no evidence of symptoms, diagnosis, or treatment for sleep apnea in service treatment records, "no link was established between the Veteran's medical condition and military service." However, there is no discussion of the Veteran's lay statements that his wife began to notice his snoring and pauses in breathing in 1990. The examiner also opined that it is less likely than not that the Veteran's sleep apnea is related to his service-connected PTSD because of a "lack of supporting medical evidence" without any further explanation. Furthermore, the opinion is conflicting because the examiner states at the bottom of the opinion that "OSA was caused by the [service-connected] PTSD." The matters are REMANDED for the following action: 1. Forward the claims file to the April 2020 VA examiner (or to another VA examiner if they are unavailable) to obtain an addendum opinion regarding the nature and etiology of the Veteran's obstructive sleep apnea. The examiner is asked to provide an opinion as to the following: (a) Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that sleep apnea had its clinical onset during active service or is related to any incident of service; and (b) Whether it is at least as likely as not that sleep apnea was either caused by or aggravated (permanently worsened beyond its natural progress) by the Veteran's service-connected PTSD, including as a result of treatment and/or medication for any service-connected disability. Additionally, the examiner should consider and discuss the medical study referenced in the Veteran's August 8, 2018 brief and the Veteran's lay statements concerning his symptoms and their onset. A complete rationale should accompany any opinion. A new examination is not necessary unless deemed so by the examiner. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel