Citation Nr: A22001845 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 190327-5235 DATE: February 2, 2022 ORDER Entitlement to service connection for migraine headaches is granted. Entitlement to service connection for obstructive sleep apnea is denied. From August 31, 2018, a disability rating of 60 percent for gastroesophageal reflux disease (GERD) is granted. FINDINGS OF FACT 1. A migraine headache disability was first manifest in service. 2. Obstructive sleep apnea did not manifest in service and is unrelated to service. 3. Obstructive sleep apnea is not caused by or aggravated by a service-connected disease or injury. 4. For the rating period from August 31, 2018, the Veteran's GERD has manifested in symptoms productive of severe impairment of health. CONCLUSIONS OF LAW 1. A migraine headache disability was incurred during service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. 3. Obstructive sleep apnea is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 4. From February 22, 2018 forward, the criteria for a rating of 60 percent for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1998 to December 2004. This matter comes to the Board of Veterans Appeals (Board) from a March 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Board will summarize the lengthy procedural history of these three issues. Claims for service connection for migraines and sleep apnea were denied in a February 2015 rating decision. The Veteran submitted a legacy Notice of Disagreement in April 2015 and in September 2016 the Regional Office issued a Statement of the Case denying the claims. In September 2016 the Veteran filed a legacy VA Form 9 appealing only the claims for service connection for migraines and sleep apnea. The Regional Office issued a Supplemental Statement of the Case in October 2016 and the issues were certified to the Board. The Veteran testified before a Veterans Law Judge (VLJ) in March 2018. A transcript of the hearing is associated with the record. In May 2018, the Board issued a decision remanding the claims for service connection for migraines and sleep apnea to obtain new VA examinations and opinions. In October 2018, the Veteran opted the appeals into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. He selected the Higher-Level Review lane. In March 2019, the examinations and opinions requested by the Board's remand instructions were provided. In March 2019, the Regional Office issued a rating decision denying the claims. Regarding the appeal for an increased rating for GERD, the Board notes that service connection was granted for GERD in a September 2012 rating decision and that a 0 percent noncompensable rating was assigned effective May 27, 2011, the date VA received the claim. The Veteran filed an informal Notice of Disagreement in October 2012 seeking a higher evaluation. In September 2014, the Regional Office issued a rating decision assigning a 10 percent evaluation effective May 27, 2011, and a Statement of the Case (SOC) denying a rating more than 10 percent. The Veteran was given 60 days to appeal the matter to the Board following the SOC. He did not appeal. Thereafter, an appeal for an increased rating for GERD was erroneously certified to the Board in February 2015 and November 2016. In February 2018, the Veteran attempted to file a new claim seeking an increased rating for GERD. On February 23, 2018, VA sent the Veteran a letter notifying him that VA was still processing an appeal for GERD. At the March 2018 Board hearing, the Veteran and his representative clarified that he was not appealing the issue of an increased rating for GERD. On March 29, 2018, VA received a communication from the Veteran notifying VA that he was withdrawing his claim for "hernia hiatal (Acid Reflux) condition" from his appeal. We note that there was never a legacy appeal for an increased rating for GERD. Despite the foregoing, the Regional Office issued a rating decision denying a rating more than 10 percent for GERD in April 2018. On May 24, 2018 the Veteran submitted a statement requesting a new VA examination for GERD. The Regional Office considered this statement an informal claim for an increased rating for GERD. The Veteran also submitted a private disability benefits questionnaire for GERD. In July 2018, the Regional Office issued a rating decision increasing the rating for GERD to 60 percent effective May 24, 2018, supposedly the date of claim. In July 2018, the Veteran filed a claim attempting to seek an earlier effective date for the 60 percent evaluation for GERD. The Veteran was provided a new VA examination and in September 2018 the Regional Office issued a rating decision decreasing the evaluation for GERD to 10 percent effective August 31, 2018, the date of the examination. In October 2018, the Veteran submitted a new claim seeking an increased rating for GERD, and in November 2018 the Regional Office issued a rating decision denying a rating more than 10 percent for GERD. The Veteran filed a legacy Notice of Disagreement in December 2018, and simultaneously opted the appeal into the AMA review system by submitting RAMP election form. He selected Higher-Level Review. In March 2019, the Regional Office issued a rating decision denying the claim. In March 2019, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) appealing the claims for service connection for migraines and sleep apnea and an increased rating for GERD. He requested a hearing with a VLJ. Therefore, the Board may only consider the evidence of record at the time of the October 2018 RAMP opt-in for the appeals for service connection for migraines and sleep apnea, the December 2018 RAMP opt-in for the appeal seeking a higher rating for GERD, as well as any evidence submitted by the Veteran and his representative at the hearing and within 90 days following the hearing. 38 C.F.R. § 20.302 (a). The Veteran appeared at the requested Board hearing before a VLJ in September 2021. With respect to the Board hearing, the VLJ clarified the issues on appeal, explained the concepts of service connection and increased ratings, and elicited relevant testimony from the Veteran. After further discussion, the VLJ also clarified that, with regards to the claim for an increased rating for GERD, the period on appeal would be determined in relation to the October 2018 claim for an increased rating. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. SERVICE CONNECTION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a veteran 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" the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). With chronic diseases, including certain headache disorders as other organic diseases of the nervous system, shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Migraine headaches. The Veteran seeks service connection for a migraine headache disability. He contends his current migraines began during service and are directly related to headaches he experienced while in service that have continued since separation. Alternatively, he asserts that his headaches are secondary to his service-connected hypertension and right eye amblyopia. The question for the Board is whether the Veteran has current migraine headache disability that manifested in service, within the applicable presumptive period, or is secondary to service-connected disease or injury. We find that there is a current migraine headache disability that has been present since service. Service treatment records show that in July 1999 the Veteran reported a throbbing headache with dizziness, vomiting, and ear pain, and was assessed with a headache and dehydration. He also reported headaches in an August 1999 preventative health assessment. Headaches are not noted on the November 2004 separation medical examination. At a January 2005 VA psychiatric examination, the Veteran reported developing headaches relating to excessive worry and anxiety, and that he developed these headaches daily. The Veteran enrolled in VA care at Salt Lake City in December 2005. During the new patient consultation, he reported infrequent headaches that had been increasing and seemed to occur when he did not eat. In January 2006 the Veteran submitted a VA health history questionnaire wherein he reported constant headaches. A January 2012 private record reflects the Veteran reported frequent headaches. December 2012 VA treatment records note a history of both daily headaches and migraine headaches. A December 2013 private record shows he reported extreme migraine headaches for the past three to four years. He was formally diagnosed with migraines by VA in February 2014. The Veteran was provided a VA examination for headaches in August 2014. He reported that he began having issues with sleeping in the late 1990's with headaches in relation to his lack of sleep, and that the headaches did not cause issued until about five years prior when he started having migraines. He also reported that he has regular headache that become migraines if not treated, and that he has headaches 3-5 times per week with migraines 1-2 times per week. The examiner diagnosed migraines with a date of diagnosis listed as "1990's." The examiner determined the Veteran's headaches were less likely than not proximately due to or the result of any service-connected condition, explaining that given the available information and the history of the Veterans' migraine condition, there is no clear connection between his current headache condition and any of his other medical issues. We note that the Board's May 2018 remand found this opinion inadequate because the examiner did not use the appropriate standard of equipoise in reaching his conclusion, did not address aggravation of the headaches by a service-connected disability, and did not address direct service connection. The Veteran has provided a November 2014 headaches disability benefits questionnaire completed by a private physician. We note that the Veteran reported his headaches began in approximately 2000 when he was serving in Korea, and the physician noted the Veteran's depression and hypertension increased the frequency and severity of the headaches. The Veteran testified at a March 2018 Board hearing. He reported his headaches had started around 2000 during service when he began having sleep problems, and that he did not always go to the doctor during service when he had a headache. He also reported that he continued to have headaches following separation from service and that his current symptoms are similar to what he experienced during service but had worsened since separation. The Veteran's spouse also testified that his headaches had started about two to three years into his service and had continued and intensified after separation. The Board remanded this matter in May 2018 to obtain a new VA examination and opinions. The Veteran was provided the new headaches examination in March 2019. The examiner noted that headaches and migraines were diagnosed by VA in 2013 and that 2017 treatment records showed chronic daily headaches that progressed to migraines about three times per month and were associated with nausea, vomiting, photophobia, and phonophobia. The examiner noted that service treatment records revealed an isolated headache associated with an acute illness, that the separation examination was silent for headaches, and post-service treatment records within 12 months of discharge were absent concerning headaches. The examiner concluded that it was less likely as not that the Veteran's headaches are related to his active duty or were secondary to or aggravated by his service-connected hypertension. Regarding direct service connection, the examiner explained that the isolated headache complaints in service were associated with illness, the separation examination was silent, there were no medical records within 12 months of separation, and no chronicity of care with a diagnosis made in 2013. Regarding secondary service connection, the examiner explained that UpToDate did not list hypertension as a cause of migraines or chronic daily headaches. The Veteran testified at another Board hearing in September 2021. Regarding headaches, he reported that he first developed headaches during his service in his early twenties and that he finally went to sick call in 1999 after the headaches became too severe. He also reported that he did not go to sick call for each headache out of fear of being called a malingerer. After reviewing the evidence, the Board finds service connection for migraine headaches is warranted as directly incurred during service. Initially, the Board finds the March 2019 VA nexus opinion to be of no probative value. The examiner's findings and rationale are heavily premised on factual inaccuracies. The Veteran's service treatment records do document headaches in July and August 1999 but do not associate these headaches with any particular illness. The examiner also determined headaches were first diagnosed in 2013 and that post-service treatment records within 12 months of discharge were absent concerning headaches. However, the Veteran reported headaches during his initial VA treatment consultation in December 2005 almost immediately following his separation from service. Subsequent VA and private treatment records reflect he has been intermittently reported and been treated for headaches since, with the headaches increasing in severity and frequency in approximately 2010. Given the above, the Board finds the March 2019 VA nexus opinions relies on an inaccurate factual premise and is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.") (citing Reonal). Furthermore, the examiner did not address, and provided no explanation for disregarding, the Veteran's numerous lay statements regarding onset and continuity of his headaches. The opinion is of little probative weight. The Veteran has submitted multiple statements from private physicians indicating that it was likely his current headaches initially manifest during service and had continued since. A September 2016 letter from a Dr. D.M.B. states he had reviewed the Veteran's military records, that headaches were addressed at multiple visits, and that the headaches had begun during military service. A March 2018 letter from S.B., an advanced practice registered nurse, states that she had reviewed service treatment records showing headaches during service and she had considered the Veteran's reports that headaches began when he was approximately 21 years old during service, although no specific opinion was provided. We note that the Veteran has also provided two letters from F.T., another advanced practice registered nurse, attributing his migraines to hypertension. Here, the service treatment records show the Veteran was treated for at least one severe protracted headache during service in July 1999 and reported ongoing headaches thereafter. He was diagnosed with headaches in December 2005 almost immediately after his discharge. Subsequent VA and private treatment records note intermittent headaches that worsened in severity around 2010, eventually culminating in a formal migraine diagnosis. We note that headache pain and related symptoms are subjective, and the Veteran as a lay person is competent to testify to observable symptoms of disability such as headaches and migraines. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran has consistently reported that his headaches began during service, that he did not report each headache during service so as not to be labelled a malingerer, and that the headaches continued after separation until intensifying in around 2010. The Board is presented with the facts that the Veteran developed headaches during service, including at least one severe protracted headache, and that he was assessed with headaches by VA following his separation in December 2005. He has competently and credibly reported that his symptoms have continued since separation. The Veteran has reported ongoing headaches since service, wherein he did make complaints of headaches. Lay statements from his spouse also reflect this fact. We note that the symptoms reported during his headache in July 1999 are similar to the symptoms noted on VA examinations attributable to his current migraines, albeit less severe. Post service diagnoses have varied, but the current diagnosis is migraine. Based upon the service treatment records, the immediate post-service VA records, and the lay evidence, we find that there is little to distinguish the post service headache from the in-service headaches. Service connection is granted for migraine as incurred during service. Incidentally, the Board notes that the evidence is in favor of service connection for migraines as secondary to the Veteran's service-connected hypertension. However, as service connection is warranted for migraine headaches on a direct basis, service connection for migraines as secondary to hypertension is unnecessary. 2. Obstructive sleep apnea. The Veteran seeks service connection for obstructive sleep apnea. He contends he had sleep apnea during his service. Alternatively, he asserts obstructive sleep apnea is secondary to his service-connected asthma or posttraumatic stress disorder (PTSD). After reviewing the record, the Board finds the evidence is against the claim for service connection for obstructive sleep apnea under any theory of entitlement. Service treatment records show that in August 1999 the Veteran was evaluated for insomnia for the past few week related to changing shifts. At a September 1999 followup he reported problems sleeping for a few years. HE reported working swing shifts and that he had trouble sleeping during the day. He was assessed with insomnia likely secondary to alternating shifts. A June 2004 asthma outpatient record notes night-time wheezing related to asthma. No sleep problems or sleep apnea were noted on the November 2004 separation examination. A January 2005 VA psychiatric examination shows the Veteran reported difficulty sleeping and that he wakes up at night and early in the morning constantly thinking. He reported snoring in a January 2006 VA health history questionnaire. A December 2013 private records shows the Veteran reported sleep disturbances and that he was waking frequently at night for the past two weeks. A July 2014 VA primary care note shows the Veteran reported that he feels tired when he wakes up and sleepy during the day, and that his wife had reported snoring and apneas, and he was referred for a sleep study. The Veteran had a private sleep study in October 2014 and was diagnosed with obstructive sleep apnea. In May 2018 the Board remanded the claim for service connection for sleep apnea to obtain a VA examination and opinion, which were provided in March 2019. The examiner noted the Veteran was diagnosed with obstructive sleep apnea in 2014 by VA and that he currently uses a CPAP. The examiner concluded that the Veteran's sleep apnea was less likely as not related to his active duty. The examiner explained that the service medical records did not reveal symptoms consistent with obstructive sleep apnea, that the separation examination was silent for the same, that there were no medical records within 12 months of discharge concerning sleep apnea, and the diagnosis was first made in 2014 many years after service. Initially, the Board concludes the preponderance of the evidence is against finding the Veteran's obstructive sleep apnea was manifest during service. The service treatment records do reflect complaints of difficulty sleeping and snoring. However, at the time he was assessed with insomnia related to shift changes. The Veteran and his spouse have reported snoring and that the Veteran stopped breathing at night during service. These lay statements include testimony provided at the March 2018 and September 2021 Board hearings. Both the Veteran and his spouse are competent to provide evidence of that which they experience, including symptoms such as snoring and apneas and his medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the service treatment records more probative in determining whether obstructive sleep apnea manifested during service. The Veteran had insomnia, not obstructive sleep apnea, during service. We cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence showing the Veteran had obstructive sleep apnea during service can be considered and weighed against the lay statements. Id. Additionally, the medical record here is not entirely silent. The service treatment records show the Veteran was assessed with insomnia. No sleep troubles were noted at separation. Although he reported sleep troubles shortly after service, these were explicitly related to his service-connected psychiatric disorder and do not demonstrate the Veteran had sleep apnea. He was first assessed with sleep apnea in October 2014 following reports of waking up tired and daytime sleepiness, distinct from the in-service insomnia. The lay statements suggesting the Veteran had sleep apnea during service is contradicted by the more probative medical evidence. See, e.g., Caluza v. Brown, 7 Vet. App. 498 (1995) (In assessing credibility, the Board may consider factors such as interest, bias, inconsistent statements, and consistency with other evidence of record); aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Id. at 304. The Board finds the March 2019 VA opinion that the Veteran's sleep apnea was less likely as not related to his active duty to be probative evidence on his point. The examiner explained that the service treatment records did not reveal symptoms consistent with obstructive sleep apnea, that the separation examination was silent for the same, that there were no medical records within 12 months of discharge concerning sleep apnea, and the diagnosis was first made in 2014 many years after service. This rationale is generally consistent with the Veteran's documented medical history, which shows diagnoses of insomnia only during service, complaints of sleep problems related to anxiety immediately after service, and show the Veteran was diagnosed with sleep apnea in 2014 nearly a decade after he separated from service. This multi-year gap after service also provides probative evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes that the examiner did not directly address the lay statements that the Veteran snored during service and that the Veteran's spouse witnessed difficulty breathing during his service. However, as explained above, the Board finds these lay statements less credible than the medical evidence of record and does not find it necessary to remand for another medical opinion addressing these lay statements. Although the Veteran has submitted statements from private physicians stating that his sleep apnea was manifest in service, the service treatment records themselves reflect the Veteran's only sleep disorder present during service was insomnia. A September 2016 private opinion concludes the Veteran's sleep issues were treated during service. A March 2018 opinion simply states the Veteran worked alternating shifts, had excessive daytime sleepiness, and was not diagnosed with sleep apnea during service. None of these letters contain any rationale explaining how insomnia caused by shift changes during the Veteran's service was actually sleep apnea. Furthermore, the Veteran was first diagnosed with sleep apnea in 2014, nearly a decade after he separated from service. The Veteran also contends his obstructive sleep apnea is secondary to his service-connected asthma and PTSD. Service connection is warranted on a secondary basis for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, there is only one nexus opinions addressing secondary service connection. Following the September 2021 Board hearing the Veteran submitted a September 2021 opinion from F.T., a private advanced practice registered nurse. F.T. determined that, that after reviewing the record, the Veteran's sleep apnea is due to his service-connected PTSD. F.T. stated that the Veteran was diagnosed with obstructive sleep apnea in the early 2000's and again by the VA in 2013. Studies have found a relationship between PTSD and obstructive sleep apnea, and Veterans with PTSD have a higher incidence of obstructive sleep apnea than the general population. The Board finds the September 2021 opinion is of little probative weight. First, the opinion contains at least one significant factual inaccuracy impacting probative weight. The Veteran was not diagnosed with obstructive sleep apnea in the early 2000's. The medical evidence establishes he was first diagnosed with sleep apnea following an October 2014 sleep study. A diagnosis in the early 2000's would imply that the Veteran was diagnosed during service of very shortly thereafter, considering he separated from service in December 2004. He was first diagnosed in October 2014, and there is nothing in the medical record implying any earlier diagnosis. See Reonal, 5 Vet. App. at 461; Monzingo, 26 Vet. App. at 97. Furthermore, although F.T. stated that studies have found a relationship between PTSD and obstructive sleep apnea, and that Veterans with PTSD have a higher incidence of obstructive sleep apnea than the general population, none of these studies were cited and it is unclear whether a causal relationship exists. In addition, while the literature may suggest a general link between PTSD and veterans, no rationale was provided explaining why this relationship was causal in this Veteran's circumstances. The opinion is essentially conclusory and relies on factual inaccuracies and is not probative. Although this appeal is under the provisions of the AMA, when there are pre-decisional duty-to-assist errors it is permissible for the Board to have those errors corrected before deciding the claims on appeal. See 38 C.F.R. § 20.802. The Board notes that no VA opinion has been obtained addressing whether the Veteran's obstructive sleep apnea is secondary to any of his service-connected diseases or injuries, including PTSD. As noted above, this appeal stems from an October 2018 RAMP opt-in seeking higher level review of the evidence available at the time the RAMP opt-in was submitted. The Board finds no pre-decisional duty to assist error in VA's failure to obtain an opinion regarding secondary service connection. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. C.F.R. § 3.159 (c)(4). In in determining whether the duty to assist requires that a VA medical examination be provided, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Considering the McLendon factors outlined above, the Veteran has obstructive sleep apnea and is service connected for both asthma and PTSD. However, at the time of the RAMP higher-level review, there was no competent or credible evidence that the Veteran's obstructive sleep apnea was proximately due to, the result of, or aggravated by a service-connected disease or injury beyond his assertions. The Veteran's lay assertions are insufficient to require the Secretary to provide an opinion on whether his obstructive sleep apnea is secondary to a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The only competent evidence suggesting sleep apnea is secondary to PTSD was received after the decision on appeal and is of slight probative value. As such, at the time of the higher-level review VA's duty to assist did not require obtaining an opinion as to secondary service connection. Furthermore, as explained above, the March 2019 VA opinion addressing direct service connection is adequate. In sum, there is insufficient probative evidence linking the Veteran's obstructive sleep apnea directly to his service or secondarily to a service-connected disease or injury. The preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Increased rating for gastroesophageal reflux disease (GERD). The Veteran seeks increased evaluations for his service-connected GERD, which is currently evaluated 10 percent disabling from May 27, 2011 to May 24, 2018, 60 percent disabling from May 24, 2018 to August 31, 2018, and 10 percent disabling again from August 31, 2018. He contends that his symptoms most closely approximate the criteria for a 60 percent evaluation for the entire time his GERD has been service connected. See September 2021 Board Hearing Transcript, page 7. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the current uniform 60 percent evaluation for GERD is warranted from August 31, 2018, accounting for the entire period on appeal. The Veteran's GERD is currently rated under hyphenated Diagnostic Code 7399-7346. The rating schedule does not provide a specific code for GERD, which is instead rated by analogy under Diagnostic Code 7346 which is used for rating hiatal hernia. See 38 C.F.R. § 4.20. On review of those criteria, the Board finds the analogy appropriate, as the symptoms and impairment associated with GERD most approximately resemble those in the criteria for rating hiatal hernia under Diagnostic Code 7346. See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). Under Diagnostic Code 7346, a ten percent evaluation contemplates two or more of the symptoms for the 30 percent evaluation of less severity. An evaluation of 30 percent 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 evaluation 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. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran was provided a VA examination for GERD in April 2018. He reported severe heartburn that had been worsening with regurgitation, reflux, and nausea. His symptoms woke him up at night and required doubling his dosage of mediation. Symptoms recorded on the examination report included reflux, regurgitation, substernal and shoulder pain, persistently recurrent epigastric distress, and four or more episodes of vomiting and sleep disturbance per year. The examiner did not note any impairment of health. The Veteran did report he has to excuse himself from work when he gets severe reflux. The Veteran submitted a July 2018 esophageal conditions disability benefits questionnaire completed by Dr. D.B., a private physician. The Veteran reported daily persistent epigastric pain, regurgitation, and heartburn. Symptoms recorded on the DBQ report included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance, nausea, vomiting, hematemesis, melena. Each of these was noted as occurring four or more times per year. Melena and hematemesis lasted for one to nine days; the rest lasted ten days or more. Dr. D.B. also noted moderate esophageal stricture, spasm, or diverticulum, noting the Veteran sometimes has trouble swallowing. He noted that the Veteran was constantly in pain and that his gastrointestinal symptoms made it hard to maintain his work activities. The Regional Office used the July 2018 private examination to assign the 60 percent evaluation effective May 24, 2018. In August 2018 the Veteran was admitted to the hospital after vomiting up bright red blood four or five times and with red blood in his stool. Nutritional notes state the Veteran had lost "21.4% of body weight over the past year," that he had been drinking protein shakes for breakfast, and that if he eats after 4 pm he will have heartburn all night. He reported issues keeping food down and that after almost every meal he must mentally focus on not regurgitating his food due to his reflux. He had an EGD, which showed a normal esophagus with patchy mild gastritis in the antrum and body of the stomach and a normal duodenum. He was assessed with chronic inactive gastritis. Mild intermittent anemia is noted in subsequent VA treatment records. He was provided another VA examination for GERD in August 2018. He reported almost substernal heartburn with regurgitation, chronic nausea, and occasional dysphagia for solid and liquid foods. The Veteran also reported the hospitalization in August 2018 for a gastrointestinal bleed. The examiner noted an EGD report showed a normal esophagus with mild gastritis and that he had a normal colonoscopy, so the cause for the blood loss was unclear. Symptoms listed on the examination report include persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, and nausea. No esophageal stricture, spasm, or diverticulum were noted. The examiner concluded GERD did not impact the Veteran's ability to work. The Regional Office used the August 2018 VA examination report to reduce the rating for GERD from 60 percent to 10 percent, effective August 31, 2018, the date of the examination. He had another VA examination for GERD in October 2018. He reported that the GERD had gotten worse, with reflux with nausea and vomiting. He also reported that he cannot eat after 4 pm because his GERD will keep him from sleeping. Symptoms noted on the examination report include infrequent episodes of epigastric distress, dysphagia, pyrosis, reflux, regurgitation, sleep disturbance, nausea, and vomiting. No esophageal stricture, spasm, or diverticulum were noted. The examiner concluded GERD did not impact the Veteran's ability to work. In October 2018 the Veteran submitted another esophageal condition disability benefits questionnaire completed by F.T., a private registered nurse. The diagnoses listed include GERD, hiatal hernia, hematemeses, hematochezia, anemia, gastritis, and a gastrointestinal bleed. Symptoms attributable to these diagnoses included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance, weight loss, nausea, vomiting, hematemesis, and melena. Each of these was noted as occurring four or more times per year and lasting either one to nine days or for ten days or more for each occurrence. Moderate difficulty swallowing was noted. Regarding impact on the Veteran's ability to work, F.T. also noted that the Veteran was constantly in pain and that his gastrointestinal symptoms made it hard to maintain his work activities. The Board is presented with highly conflicting evidence regarding the severity of the Veteran's GERD, with VA examinations indicating the disability is mild and private examinations indicating the disability is severe. Some of the Veteran's documented severe symptoms are not recorded in either the August or October 2018 VA examinations. For example, August 2018 VA hospital records appear to attribute significant weight loss to the Veteran's GERD and resulting changed eating habits. The Veteran has also repeatedly and credibly reported constant substernal pain and frequent vomiting caused by his GERD. He must also alter how, what, and when he eats with a demonstrable impact on his health and weight loss. Additionally, the Veteran's history of difficulty swallowing with every meal is not reflected in the VA examination reports. As such, the VA examinations do not appear to accurately reflect the severity of the Veteran's GERD. However, some of the severe symptoms listed on the July and October 2018 private examinations are not documented as being caused by the Veteran's GERD or have been documented as occurring far less frequently than he reported to his private medical providers. For example, although the Veteran had hematemesis and melena in August 2018, such was never actually attributed to his GERD when he was hospitalized. Additionally, both symptoms were documented at the time of his hospitalization as occurring during one day in August 2018. The Veteran denied having either symptoms before, and subsequent VA treatment records show he has denied recurrence of either hematemesis or melena. In contrast to these medical records, the private examination reports show hematemesis and melena occurring very frequently and lasting many days per episode. The cause of the Veteran's anemia has also been difficult to determine, in part because VA treatment do not reflect an actual cause of his gastrointestinal bleeding. As the August 2018 VA examiner noted, the August 2018 EGD report showed a normal esophagus with mild gastritis. The cause of the gastrointestinal bleed has never been specifically identified, much less attributed to GERD. The severity of the Veteran's GERD symptoms is further complicated by the October 2018 disability benefit questionnaire, which includes diagnoses for multiple disorders for which the Veteran is not service connected. He is service connected for GERD; he is not service connected for separate disorders including hiatal hernia, anemia, or gastritis. Given the foregoing, it also unclear whether the private disability benefits questionnaires accurately reflect the severity of the Veteran's GERD. The Board could remand the claim to obtain yet another VA examination to determine the severity of the Veteran's GERD. However, given the history of VA examinations obtained in this case, the Board does not wish to remand for potential negative development. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that it is not permissible for VA to obtain medical opinions where such development may be reasonably construed to obtain evidence against an appellant's case). The Board also notes that the Veteran's GERD is controlled by medication to a degree. The Court of Appeals for Veteran's Claims 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 relief provided by medication. The Veteran has taken multiple medications to treat his GERD throughout the period on appeal with varying degrees of effectiveness. The Veteran's lay statements and the medical records reflect that his symptoms do worsen when he does not take his medication, but also that the medications are not always effective. Regardless, entitlement to a higher rating based on such relief may not be denied in this instance. Considering the foregoing evidence, the Board finds the evidence is approximately in equipoise as to whether a 10 percent or a 60 percent evaluation is warranted. Resolving all reasonable doubt in the Veteran's favor, we conclude a 60 percent evaluation is warranted for the Veteran's GERD from February 22, 2018, the date of the claim on appeal. The Board finds that the Veteran's GERD manifests in persistently recurrent epigastric distress caused by dysphagia, pyrosis, reflux, regurgitation, nausea, vomiting, substernal pain, with sleep disturbance and material weight loss. Furthermore, we conclude the Veteran's symptoms combine to cause severe impairment of the Veteran's health, thereby meeting the criteria of "other symptom combinations productive of severe health impairment" for a 60 percent evaluation under Diagnostic Code 7346. As this is the maximum allowable schedular rating, a rating more than 60 percent is not warranted. Regarding the effective date of the increase, the claim on appeal was filed on October 16, 2018. The effective date for increases in disability compensation is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2). Although the April 2018 VA examination showed relatively mild symptoms, as explained above that examination does not accurately reflect the severity of the Veteran's GERD. He submitted a statement on May 24, 2018 notifying VA that his GERD was worse than reflected on the April 2018 examination report. He submitted the July 2018 private DBQ in support of his claim, showing symptoms much worse than reflected on the April 2018 VA examination. The Veteran is already in receipt of a 60 percent evaluation from May 24, 2018, the date the Veteran reported his symptoms were worse, through August 31, 2018. This is the schedular maximum rating available for GERD, and the Board will not discuss or disturb this rating. The effective date of an increase in compensation can be the earliest date as of which it is factually ascertainable, based on all evidence of record, that an increase in disability had occurred. This is only the case if the evidence actually shows an increase had occurred, and if a claim is received within 1 year from such date. Here, the claim on appeal was filed on October 16, 2018. The Veteran first notified VA that his GERD was worse than had previously been shown on May 24, 2018, the currently assigned effective date for the 60 percent evaluation, then submitted a private evaluation showing worsening. The current claim on appeal was filed within one year of receiving this evidence. The Board finds it was factually ascertainable that an increase had occurred on May 24, 2018. A 60 percent evaluation is already in effect beginning this day until August 31, 2018. As such, the Board will grant the new increase to 60 percent effective August 31, 2018 on a fact found basis. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.