HIATAL HERNIA

COLLEEN M. GLASER-ALLEN · 2026 · Case ID: A26039348

MIXED

Summary

The veteran, who served honorably in the U.S. Navy from September 1982 to April 1992, appeals the denial of service connection for sleep apnea and seeks an increased rating for his service-connected gastroesophageal reflux disorder (GERD). The Board granted an initial 60 percent disability rating for GERD, finding that the veteran's symptoms, including pain, vomiting, material weight loss, and melena, met the criteria for this rating under Diagnostic Code 7346, which was the most beneficial analogous code for the period on appeal. The Board noted that while the VA examiners' opinions were inadequate due to conclusory language and the use of an unlawful "proximate cause" standard for secondary service connection, the veteran's own reports of symptoms, supported by treatment records and the known complications of gastric lavage, warranted the higher rating. The claim for sleep apnea was remanded because the VA examinations were inadequate. The Board found that the VA examiners failed to provide sufficient rationale or apply the correct "but-for" causation standard when assessing the secondary service connection of sleep apnea to the veteran's GERD, major depressive disorder, left shoulder condition, or obesity. The AOJ was instructed to obtain adequate medical opinions to address these issues.

Rationale

Symptoms of pain, vomiting, material weight loss, and melena identified.; Diagnostic Code 7346 (hiatal hernia) applied by analogy as most beneficial.; Veteran's reports of symptoms found probative and outweigh examiners' findings.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

7346

Docket No.

250630-562193

Full Decision Text

Citation Nr: A26039348
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 250630-562193
DATE: April 28, 2026

ORDER

An initial disability rating of 60 percent for gastroesophageal reflux disorder (GERD) is granted.

REMANDED

Entitlement to service connection for sleep apnea, to include as due to service-connected disabilities is remanded.

FINDING OF FACT

Throughout the period on appeal, the Veteran's GERD has been manifested by symptoms of pain, vomiting, material weight loss, and melena; or other symptom combinations productive of severe impairment of health.

CONCLUSION OF LAW

The criteria for an initial rating of 60 percent for GERD, throughout the appeal period, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.113, 4.114, Diagnostic Code 7346.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably on active duty in the United States Navy from September 1982 to April 1992. His awards and decorations include the Navy Achievement Medal, Navy Expeditionary Medal, and Sea Service Deployment Ribbon (submarines), among others.

Introduction

Issues on Appeal

As the Veteran timely appealed the January 2025 rating decision, via his filing of VA Form 10182 in June 2025, clearly listing the rating decision as January 31, 2025, and as that rating decision adjudicated the service connection claim for sleep apnea, that claim is properly on appeal before the Board of Veterans' Appeals (Board). The Board recognizes that the Agency of Original Jurisdiction (AOJ) also adjudicated an increased rating claim for an eye disorder in the January 2025 rating decision. However, the Veteran appealed this claim separately to the Board via his filing of VA Form 10182 in August 2025, which the Board addressed in a separate February 20, 2025 decision.

In the VA Form 10182 (notice of disagreement) submitted June 30, 2025, the Veteran listed "01/31/2025" as the date of the rating decision and "gastroesophageal reflux disease (GERD)" as the issue he wished to appeal.

Unfortunately, there is a disconnect here as the rating decision dated January 31, 2025 did not adjudicate a claim for GERD. Instead, it adjudicated an increased rating claim for bilateral dry eye syndrome and a service connection claim for sleep apnea. Adding to the confusion is the June 30, 2025 correspondence, where the Veteran's representative indicated the Veteran's GERD should be rated as 60 percent disabling and referred to the January 31, 2025 rating decision ("We submit this brief in appeal of the Rating Decision Letter (RDL) dated 01/31/2025").

The Board notes that a November 2024 rating decision adjudicated an increased rating claim for GERD, and the June 2025 VA Form 10182 also serves as a timely notice of disagreement to that rating decision. Resolving reasonable doubt in favor of the Veteran, the Board finds that it was the Veteran's intent to appeal both the service connection claim for sleep apnea and the increased rating claim for GERD.

Lastly, the Board notes that there is an increased rating claim on appeal and that both the July 2023 and the August 2024 VA examiners concluded that the Veteran's service-connected GERD impacts his ability to perform occupational tasks. Notwithstanding, the Veteran has not contended unemployment or marginal employment. As such a claim for total disability rating based on individual unemployability (TDIU) has not been raised by the record and the Board will not take jurisdiction over a claim for TDIU at this time. In fact, these two VA examinations indicate that the Veteran is employed full-time.

Evidentiary Windows

The increased rating claim for GERD stems from the original service connection claim submitted May 2023, and as explained above, comes before the Board from a November 2024 AOJ rating decision.

The service connection claim for sleep apnea stems from the original service connection claim submitted February 2024 and comes before the Board from a January 2025 AOJ rating decision.

Evidentiary Windows

The increased rating claim for GERD stems from the original service connection claim submitted May 2023, and as explained above, comes before the Board from a November 2024 AOJ rating decision.

The service connection claim for sleep apnea stems from the original service connection claim submitted February 2024 and comes before the Board from a January 2025 AOJ rating decision.

As the Veteran has selected the Direct Review Docket, the Board may only consider the evidence of record before the AOJ at the time of the November 2024 and January 2025 rating decisions, respectively, on appeal. 38?C.F.R. §§?20.300(a), 301. The Board will not consider evidence received after the AOJ decisions unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the notice of disagreement (NOD) (VA Form 10182). 38?C.F.R. §?20.301. The Veteran has not filed such a request.

If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it. 38 C.F.R. §?20.300. However, as the Board is issuing a full grant for the increased rating claim for GERD, it intimates that no additional evidence was required for such a grant. Additionally, as a remand of the service connection claim for sleep apnea is warranted, any such evidence will be considered by the AOJ on remand with respect to that claim.

1. An initial disability rating of 60 percent for gastroesophageal reflux disorder (GERD)

The Board first addresses the Veteran's representative's July 2024 and June 2025 arguments to clarify the claim for the GERD issue on appeal. The Veteran's representative argues for an increased rating for GERD and then states "this is not a claim for increase. This is a timely request for review of a prior determination." Considering the argument and noting that the November 2024 rating decision adjudicated an increased rating claim for GERD, the Board concludes this argument is intended to advocate for an initial rating greater than 10 percent for the Veteran's service-connected GERD. The Veteran's representative concludes by contending that the Veteran has continuously pursued his claim since May 2023 and that any increased rating should be assigned an effective date of May 19, 2023. The Board agrees.

Legal Criteria

Increased Ratings

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.? 38 U.S.C. § 1155;?38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran.? 38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown,?7?Vet. App.?55?(1994). However, the Board must also consider staged ratings. Hart v. Mansfield,?21?Vet. App.?505, 509-10?(2007).

GERD Rating Criteria

The Veteran's gastroesophageal reflux disease (GERD) is rated as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346, as of May 2023, for the entire period on appeal.

Prior to May 19, 2024, GERD was not listed specifically in the Rating Schedule, and the most analogous diagnostic code for the Veteran's GERD is Diagnostic Code 7346 (hiatal hernia). 38 C.F.R. § 4.20 (providing for rating by analogy).

Under Diagnostic Code 7346, a 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent disability rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health.

The terms "severe impairment of health" and "considerable impairment of health" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

However, the Board shall apply the ordinary meanings of the words. "Considerable" is defined as "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). "Severe" is defined as "very painful or harmful." Id. at 1140.

Moreover, "dysphagia" is defined as difficulty in swallowing. See Dorland's Illustrated Medical Dictionary, 587 (31st ed. 2007). "Pyrosis" is defined as heartburn. Id. at 1587. "Hematemesis" is defined as the vomiting of blood. Id. at 842. "Melena" is defined as the passage of dark-colored feces stained with blood pigments or with altered blood. Id. at 1142.

For the purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease.

In assigning a rating under Diagnostic Code 7346, the ameliorative effects of medication may not be considered. Jones v. Shinseki,?26?Vet. App.?56, 63?(2012).

Effective May 19, 2024, the rating schedule now specifically lists GERD under Diagnostic Code 7206.

Under Diagnostic 7206, a 10 percent rating is warranted for a documented history of esophageal stricture(s) that requires daily medications to control dysphagia otherwise asymptotic. A 30 percent rating is warranted for a documented history of recurrent esophageal stricture(s) causing dysphagia which requires dilatation no more than two times per year. A 50 percent rating is warranted for a documented history of recurrent refractory esophageal stricture(s) causing dysphagia which requires at least one of the following (1) dilatation 3 or more times per year, (2) dilatation using steroids at least one time per year, or (3) esophageal stent placement. Finally, an 80 percent rating is warranted for a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: (1) aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by § 4.112(a) and treatment with either surgical correction of esophageal stricture(s) or percutaneous esophago-gastrointestinal tube (PEG tube).

Evidence

The Veteran seeks an initial rating greater than 10 percent for his service-connected GERD. By the virtue of his timely filings the Veteran has continuously contended that his GERD warrants a rating in excess of 10 percent. He described continuing to experience pain, discomfort, and difficulty sleeping for the past 30 years. He contends that his GERD developed from all the NSAIDs he needed to take to make his daily pain tolerable, also intimating that his GERD symptoms are worse due to the NSAIDs. See
as defined by § 4.112(a) and treatment with either surgical correction of esophageal stricture(s) or percutaneous esophago-gastrointestinal tube (PEG tube).

Evidence

The Veteran's attorney further argues that the Veteran's symptoms warrant the maximum rating of 60 percent under Diagnostic Code 7346, as of May 2023. See Attorney argument, July 2024 and June 2025.

Turning now to the evidence of record, during the period on appeal, the Veteran was afforded two VA examinations. The first was a July 2023 in-person examination and the second was an August 2024 telehealth phone interview.

The July 2023 VA examination and July 2023 VA Medical Opinion Disability Benefits Questionnaire (DBQ) were conducted by a Physician's Assistant (PA). She noted the Veteran's condition onset in 1983, while in service. In describing the onset of symptoms, the Veteran reported experiencing indigestion and regurgitation after eating, and self-treating with tums, and occasionally with zantac.

Course since onset was described as over time symptoms gradually increased and worsened significantly in 1991, due to a gastric lavage. The Veteran required a gastric lavage in 1991 due to a suicide attempt via pill ingestion, which made his GERD symptoms worsen significantly. He was formally diagnosed with GERD in 2000. He recently completed a barium swallow study which confirmed his GERD diagnosis and also indicated H. Pylori.

Current symptoms were described as regurgitation, blood in stool, nausea, and constant burning pain in throat and chest. His treatment plan includes taking continuous medication for his GERD. He reported taking Nexium, although at the time of the exam he reported temporarily discontinuing it for GI testing purposes.

On examination, the PA noted the following symptoms: persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbances caused by esophageal reflux, occurring 4 or more times a year with episodes lasting less than one day, material weight loss with a baseline weight of 230 and a current weight of 194, and nausea occurring 4 or more times a year with episodes lasting less than one day.

The examiner concluded that the Veteran did not have an esophageal stricture, spasm or esophagus, or diverticulum of the esophagus. The examiner also concluded that there were no other pertinent physical findings, complications, conditions, or signs or symptoms related to the Veteran's GERD. Finally, the examiner concluded that the Veteran's GERD impacted his ability to work, described as losing up to a week of work in the last 12 months from his current employment at a VA hospital, as a result of having to use the bathroom frequently as the Veteran is always conscious of his breath from regurgitation.

In the July 2023 Medical Opinion DBQ the PA provided a positive opinion regarding the Veteran's GERD. She also provided information, intimating a description of current symptoms of the Veterans' GERD. "Current diagnosis of GERD is consistent with veteran's reports of military food initiating symptoms followed by worsening symptoms after gastric lavage for overdose attempt. A known complication of gastric lavage is Esophageal or gastric injury. C-file shows multiple ongoing complaints of GERD over the years and current GI evaluation in process and as the veteran is still experiencing GERD issues as evidenced by today's exam, association and chronicity have been established."

The August 2024 VA Examination was conducted via telehealth by Family Nurse Practitioner (FNP). Overall, her findings were similar to those of the July 2023 VA examiner.

The FNP also listed the 2000 diagnosis of GERD. Date of onset and onset symptoms were the same as those noted in the July 2023 VA examination.

Course since onset was described as daily prescription medication that began approximately in 2000. The FNP noted that an endoscopy was performed in July 2023, and it confirmed the presence of GERD via mild diffuse superficial gastric erosion at the antrum. She also noted that although the
's exam, association and chronicity have been established."

The August 2024 VA Examination was conducted via telehealth by Family Nurse Practitioner (FNP). Overall, her findings were similar to those of the July 2023 VA examiner.

The FNP also listed the 2000 diagnosis of GERD. Date of onset and onset symptoms were the same as those noted in the July 2023 VA examination.

Course since onset was described as daily prescription medication that began approximately in 2000. The FNP noted that an endoscopy was performed in July 2023, and it confirmed the presence of GERD via mild diffuse superficial gastric erosion at the antrum. She also noted that although the Veteran was positive for H. Pylori at the time of the endoscopy, it has since resolved with successful treatment.

Current symptoms were described as regurgitation, mid-epigastric/substernal pain, nausea, burping, nighttime awakenings once a week-must sleep upright, and vomiting on nearly a daily basis. His treatment plan includes taking continuous medication for his GERD. He reported taking omeprazole, 40 mg daily and famotidine, 40 mg as needed.

Under the Signs and Symptoms section of the report the FNP checked the box "No" to indicate that the Veteran does not have any of the following signs, symptoms, or treatment due to any esophageal conditions, to include a documented history of esophageal stricture.

The FNP noted an EGD that was performed in July 2023 which showed a normal esophagus with slightly irregular Z-line, mild diffuse superficial gastric erosions at the antrum, normal duodenum, and normal gastric bod(y).

Just like the July 2023 VA examiner, the FNP concluded that there were no other pertinent physical findings, complications, conditions, or signs or symptoms related to the Veteran's GERD, and that the Veteran's GERD impacted his ability to work, described as losing up to a week of work in the last 12 months from his current employment as a medical support assistant at VA. This was further described as episodes/symptoms of GERD as well as subsequent sleep disturbances decrease focus/concentration /productivity and unable to participate in work lunches.

In the Remarks section of the report the list of symptoms noted from the "Historic DBQ" were listed. The FNP noted the following symptoms: persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbances caused by esophageal reflux, occurring 4 or more times a year with episodes lasting less than one day, and nausea occurring 4 or more times a year with episodes lasting less than one day. Just like the July 2023 VA examiner, the FNP concluded that the Veteran did not have an esophageal stricture, spasm or esophagus, or diverticulum of the esophagus.

Analysis

As noted above, the appeal period commences May 2023, and the Veteran's GERD is currently rated as 10 percent disabling throughout the period on appeal. Looking at the totality of the evidence, and in the light most favorable to the Veteran, the Board finds that an initial 60 percent rating throughout the appeal period is warranted for the Veteran's GERD under Diagnostic Code 7346.

As described above, the criteria for ratings of the digestive system were added in May 2024, specifically adding Diagnostic Code 7206, a diagnostic code specific to GERD. As the appeal period commences May 2023, the Board is first charged with determining which criteria is most beneficial to the Veteran, pre or post the May 2024 regulation addition. Accordingly, the Board next considers whether it is most beneficial to apply Diagnostic Code 7346, analogous to hiatal hernia, or Diagnostic Code 7206 as of May 2024.

Simply stated, a compensable rating is not warranted under Diagnostic Code 7206, as the evidence does not show an esophageal stricture. Therefore, the Board finds that application of Diagnostic Code 7346 for the entire period on appeal is most beneficial to the Veteran because his GERD symptoms most closely approximate the 60 percent rating he seeks on appeal.

Both the July 2023 and August 2024 VA examination reports note each symptom, less dysphagia, listed under the criteria for a 30 percent rating under Diagnostic Code 7346. Despite neither examiner concluding that the Veteran's GERD symptoms were productive of considerable impairment of health, looking at both reports, to include consideration of the Veteran's reporting during both examinations, the Board finds that the record supports at least a rating of 30 percent during the entire period on appeal
esophageal stricture. Therefore, the Board finds that application of Diagnostic Code 7346 for the entire period on appeal is most beneficial to the Veteran because his GERD symptoms most closely approximate the 60 percent rating he seeks on appeal.

Additionally, the Board finds the evidence demonstrates key symptoms associated with a 60 percent rating under Diagnostic Code 7346, such as pain, vomiting, and material weight loss. The Board recognizes that despite the Veteran's reporting of vomiting nearly every day the August 2024 VA examiner failed to indicate vomiting as a symptom anywhere else in the report. That aside, the Board finds that the Veteran is competent to report observable symptoms such as vomiting. Despite the July 2023 and August 2024 VA examiners failing to note melena and vomiting symptoms, the Board finds the Veteran's reports of such probative and outweigh the examiners' C&P reports. The Board finds Veteran's reporting of blood in his stool and vomiting is not only consistent with his treatment records, but symptoms a lay person may readily and competently observe. Thus, the Board finds that the probative evidence demonstrates the symptoms of vomiting and melena due to the Veteran's service-connected GERD, throughout the period on appeal.

Further, the Board recognizes that neither VA examiner noted hematemesis, moderate anemia, or other symptom combinations productive of severe impairment of health. Although neither examiner specifically mentioned "severe impairment of health;" the Board finds between both examinations, nearly all the symptoms for the highest rating under Diagnostic Code 7346 were identified. Similarly, the Board finds the known complications of gastric lavage include esophageal or gastric injury. Consequently, in considering a just and equitable decision beyond applying a mechanical formula, this circumstance allows the Board to find all the of the Veteran's symptoms reflect those productive of a severe impairment of health.

In light of the above, the Board finds an initial rating of 60 percent for GERD is warranted. The Board also finds that the Veteran is not entitled to a rating in excess of 60 percent under any other diagnostic code as the evidence does not demonstrate esophageal stricture causing dysphagia, partial bowel obstruction, upper gastrointestinal surgery, or peptic ulcer disease. Diagnostic Codes 7206, 7301, 7303, 7304.

The United States Court of Appeals for Veterans Claims (Court) has held, "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

Diagnostic Code 7346 does not contemplate the effects of medication on the Veteran's GERD. The evidence shows that the Veteran takes separate medications to treat his GERD symptomatology. Further, the Veteran reported worsening of symptoms as a result of taking NSAIDs and the 1991 required gastric lavage which most likely aggravated his GERD symptoms was administered due to a suicide attempt, which can reasonably be construed as being directly due to his service-connected psychiatric disorder (rated at 70 percent during the entire period on appeal). All said, in consideration of Jones and § 4.114, the Board finds the severity of the Veteran's GERD symptoms warrants elevation to the highest evaluation, namely from 10 to 60 percent.

In sum, and resolving any doubt in favor of the Veteran, the Board finds that the persuasive evidence of record supports a disability rating of 60 percent, but no higher, for the entire period on appeal. As such, the Board grants a 60 percent rating for the Veteran's service-connected GERD, under Diagnostic Code 7346, as of May 2023. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail"); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) ("When the evidence is in approximate balance in the Veteran's favor or nearly equal regarding any issue material to the
grants a 60 percent rating for the Veteran's service-connected GERD, under Diagnostic Code 7346, as of May 2023. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail"); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) ("When the evidence is in approximate balance in the Veteran's favor or nearly equal regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant").

Not only is 60 percent the maximum schedular under Diagnostic Code 7346, but this is the rating the Veteran requested. As referenced above, the Veteran specifically requested a 60 percent disability rating by way of statements/argument submitted by his representative. As the Board has granted a 60 percent disability rating for the entire period on appeal, this is a full grant of the benefits sought on appeal. AB v. Brown, 6 Vet. App. 35 (1993).

REASONS FOR REMAND

2. Entitlement to service connection for sleep apnea, to include as due to service-connected disabilities is remanded.

Legal Criteria

Service Connection

Generally, establishing direct service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Secondary service connection requires evidence sufficient to show (1) that a current disability exists, (2) an already service-connected disability, and (3) that the disability for which secondary service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995).

Evidence and Analysis

As the supplemental claim was submitted in September 2024, a current disability is a competent medical diagnosis, anytime as of September 2024. A June 2024 VA Sleep Apnea Disability Benefits Questionnaire (DBQ) VA shows a diagnosis of obstructive sleep apnea. The Board recognizes that the June 2024 VA examination pre-dates September 2024. However, this appeal stems from the original February 2024 claim, and sleep apnea is deemed a chronic disability. See https://pubmed.ncbi.nlm.nih.gov/23434125/. As such, the June 2024 diagnosis of sleep apnea equates to a current diagnosis. Additionally, the AOJ made the favorable finding that, "You have been diagnosed with a disability. You were diagnosed with obstructive sleep apnea by VA examination on June 5, 2024." See January 31, 2025 rating decision. Therefore, the first element required for a successful service connection claim has been met.

An August 2023 VA Memorandum shows that the Veteran was exposed to radiation during his submarine service, and it confirms that he participated in a toxic exposure risk activity (TERA). A January 2025 VA Memorandum shows that the Veteran was exposed to ionizing radiation, "minimal asbestos exposure conceded" given his Navy Storekeeper rating, and it also confirms that he participated in a TERA. Here the AOJ also made the favorable finding that "Participation in a toxic exposure risk activity is conceded. You served in the Navy and have a probable exposure to ionizing radiation and asbestos." As such, the second element for direct service connection, an in-service, injury, event, or disease, has been met.

The Veteran is service-connected for several disabilities, to include gastroesophageal reflux disease (GERD), left shoulder status post total arthroplasty, and major depressive disorder with avoidant personality disorder. He contends that his sleep apnea is due to his GERD and left shoulder. See February 2024 claim. He also contends that his sleep apnea is due to "an intermediary step due to SC MDD." See September 2024 supplemental claim. As such, a secondary theory of entitlement has been explicitly raised.

However, there is no adequate medical opinion regarding either his direct or secondary OSA service connection theories.

Medical Evidence

There are five Medical Opinion DBQs, authored by four different VA nurse practitioners (NPs); only one of whom performed an in-person examination of the Veteran.

On June 5, 2024 a VA NP performed an in
with avoidant personality disorder. He contends that his sleep apnea is due to his GERD and left shoulder. See February 2024 claim. He also contends that his sleep apnea is due to "an intermediary step due to SC MDD." See September 2024 supplemental claim. As such, a secondary theory of entitlement has been explicitly raised.

However, there is no adequate medical opinion regarding either his direct or secondary OSA service connection theories.

Medical Evidence

There are five Medical Opinion DBQs, authored by four different VA nurse practitioners (NPs); only one of whom performed an in-person examination of the Veteran.

On June 5, 2024 a VA NP performed an in-person examination of the Veteran and authored a Medical Opinion DBQ. She opined that the Veteran's sleep apnea was not caused by his GERD, checking off the box that stated, "the claimed condition is less likely than not (likelihood is less than approximately balanced or nearly equal) proximately due to or the result of the veteran's service-connected condition." The rationale is inadequate as it is conclusory. Additionally, this VA examiner failed to provide the requisite language for secondary service connection. Recently, in Spicer v. McDonough, 61 F.4th 1360 (2023), the Federal Circuit held that 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims. Therefore, it held 38 C.F.R. § 3.310(b) was unlawful because it required proximate causation to establish aggravation of a disability, rather than but-for causation. The "but-for" causation standard is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction. Stated another way, "but-for" causation is broad, undisputedly broader than proximate cause. Thus, a service-connected disability need only be a contributing cause to establish secondary service connection. In this case, the examiner used the "proximate cause" standard, which has been deemed unlawful by Spicer. Thus, the Board is unable to accept the opinions addressing secondary service connection.

On June 19, 2024 another VA NP authored a Medical Opinion DBQ, opining that the Veteran's sleep apnea was not due to his participation in a TERA. Although this examiner noted exposure to ionizing radiation and listed anatomic factors, the rationale is not adequate as the examiner failed to apply the specifics of this Veteran to support her conclusion.

In October 2024 another VA NP authored a Medical Opinion, opining that the Veteran's sleep apnea is not due to his psychiatric disorder. For the same reasons stated for the June 5, 2024 medical opinion, in that it is conclusory and used the improper secondary service connection standard, this opinion is inadequate.

In January 2025, a VA NP authored two Medical Opinion DBQs. In one of the Medical Opinion DBQs she opined that the Veteran's sleep apnea is not due to his psychiatric disorder and in the other Medical Opinion DBQ she opined that the Veteran's sleep apnea was not due to his participation in a TERA. Here too, the medical opinions were inadequate as they were conclusory, used an improper standard, or failed to discuss facts relevant to this Veteran.

Once VA undertakes the effort to provide an examination and provide opinions when developing a service connection claim, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The AOJ should have obtained adequate medical opinions prior to the issuance of the January 2025 rating decision on appeal regarding the Veteran's OSA claims. As such, remand is required to remedy pre-decisional duty to assist errors.

The matter is REMANDED for the following action:

1. The Agency of Original Jurisdiction (AOJ) should schedule an appropriate VA examination to determine the nature and etiology of the Veteran's obstructive sleep apnea, preferably with an examiner who has previously not been involved with this service connection claim.

The claim file and a copy of this remand must be made available to the examiner for review.

2. The examiner should review the claims file (including this remand) and note such review was conducted.

The examiner should elicit from the Veteran a complete history of his sleep apnea and note this clearly in the report.

Following review of the claims file and examination of the Veteran, the examiner should provide opinions that respond to the following:

(a.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher)
determine the nature and etiology of the Veteran's obstructive sleep apnea, preferably with an examiner who has previously not been involved with this service connection claim.

The claim file and a copy of this remand must be made available to the examiner for review.

2. The examiner should review the claims file (including this remand) and note such review was conducted.

The examiner should elicit from the Veteran a complete history of his sleep apnea and note this clearly in the report.

Following review of the claims file and examination of the Veteran, the examiner should provide opinions that respond to the following:

(a.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea manifested during active service; manifested within a year of his April 1992 separation, or is otherwise related to an event, injury, or disease incurred during active service, to include his presumed participation in a toxic exposure risk activity (TERA), his presumed exposure to ionizing radiation, and to include his presumed exposure to asbestos while in service.

1. In responding to this question, the examiner is advised that participation in a toxic exposure risk activity while in service is presumed and the examiner must consider the synergistic, combined effect of all toxic?exposure?risk activities of the Veteran, and that an opinion based on direct theory of entitlement is requested.

2. In responding to this question, the examiner is advised that exposure to ionizing radiation while in service is presumed and that an opinion based on direct theory of entitlement is requested.

3. In responding to this question, the examiner is advised that exposure to asbestos while in service is presumed and that an opinion based on direct theory of entitlement is requested.

(b.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that but for the Veteran's service-connected major depressive disorder with avoidant personality disorder he would not have a current disability of sleep apnea.

(c.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea would be less severe and result in less functional impairment but for his service-connected major depressive disorder with avoidant personality disorder.

(d.) If the clinician opines that the Veteran's sleep apnea would result in less functional impairment but for his service-connected major depressive disorder with avoidant personality disorder, the clinician must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected major depressive disorder with avoidant personality disorder.

1. Further, the examiner should also opine whether the Veteran's service-connected disabilities, to include his service-connected major depressive disorder with avoidant personality disorder, caused in whole or in part, his obesity. If the examiner finds that the Veteran's service-connected disabilities caused him to become obese, either in whole or in part, then the examiner must opine whether: (1) obesity was a substantial factor in causing or chronically worsening the Veteran's OSA; and, (2) whether his OSA would not have occurred or chronically worsened if but for the obesity caused by his service-connected disabilities.

(e.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that but for the Veteran's service-connected left shoulder status post total arthroplasty he would not have a current disability of sleep apnea.

(f.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea would be less severe and result in less functional impairment but for his service-connected left shoulder status post total arthroplasty.

(g.) If the clinician opines that the Veteran's sleep apnea would result in less functional impairment but for his service-connected left shoulder status post total arthroplasty, the clinician must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected left shoulder status post total arthroplasty.

(h.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that but for the Veteran's service-connected GERD he would not have a current disability of sleep apnea.

(i.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea would be less severe and result in less functional impairment but for his service-connected GERD.

(j.) If the clinician opines that the Veteran's sleep apnea would result in less functional impairment but for his service-connected GERD, the clinician must attempt to
shoulder status post total arthroplasty.

(j.) If the clinician opines that the Veteran's sleep apnea would result in less functional impairment but for his service-connected GERD, the clinician must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected GERD.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.?

The examiner is further advised that the mere absence of treatment records is not wholly dispositive as to whether the Veteran had ongoing problems with sleep apnea since service.

A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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).

3. After all requested development is completed, the AOJ should readjudicate the service connection claim for sleep apnea (and is respectfully reminded the Veteran has preserved the effective date of February 15, 2024; the date of the original claim was filed).

Colleen M. Glaser-Allen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board T. Talamantes

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.

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