Citation Nr: 18150885 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 11-33 388 DATE: November 16, 2018 ORDER Entitlement to service connection for a pulmonary disability, claimed as shortness of breath is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for hypothyroidism, claimed as weight gain, is denied. FINDINGS OF FACT 1. The Veteran’s pulmonary disability did not have its onset in service and was not otherwise caused by service. 2. The Veteran does not have a current diagnosis of OSA. 3. Weight gain/obesity is not a disability for VA compensation purposes and the Veteran does not have a diagnosis of hypothyroidism. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a pulmonary disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria to establish service connection for OSA have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for obesity have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to November 1970. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2010, the Veteran provided testimony before a Decision Review Officer (DRO) of the VA RO in Indianapolis, Indiana. A transcript of the hearing is of record. This appeal was previously before the Board in September 2016 when the claims were remanded to the RO for further development. There has been substantial compliance with the previous remand. See June 2018 VA examination. The Board acknowledges that the issues of entitlement to an increased rating for peripheral artery disease of the right lower extremity and of the left lower extremity have been perfected, but not yet certified to the Board. The Board’s review of the claims file reveals that the AOJ is still taking action on these issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). “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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that while the Veteran is presumed exposed to Agent Orange during service, his claimed disabilities are not diseases associated with exposure to certain herbicide agents under 3.309. 1. Entitlement to service connection for a pulmonary disability, claimed as shortness of breath The Veteran contends that his pulmonary disability, claimed as shortness of breath, is related to active service, to include as secondary to his service-connected diabetes. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a pulmonary disability, emphysema; and, the Veteran’s diabetes is service-connected, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of a pulmonary disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran underwent a VA examination for respiratory conditions in June 2018. The report indicates that the Veteran has a diagnosis of emphysema, date of diagnosis unknown. In a June 2018 VA medical opinion, the examiner stated that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran has a diagnosis of shortness of breath, pulmonary condition that is less likely as not incurred in or caused by or manifested during active duty or is otherwise etiologically related to active duty to include exposure to herbicides during service. The examiner stated that there is no evidence the Veteran had any respiratory diagnosis while in military service. The examiner noted that a May 1969 chest x-ray was negative, and a November 1970 medical examination was negative. The examiner stated that herbicide exposure “does not lead to chronic obstructive lung disease which the Veteran developed much later after military service.” The June 2018 examiner stated that it is less likely that the lung disorder was caused or permanently worsened by one or more of the Veteran’s service connected disabilities. The examiner explained that COPD is clearly caused by the Veteran’s “longstanding (60 pack years) use of cigarettes” and that none of the Veteran’s service-connected disabilities can cause or aggravate his current lung disease. The examiner cited medical resources to explain that long-term exposure to lung irritants that damage the lungs and airways is usually the cause of COPD and that the most common irritant is cigarette smoke, noting that pipe, cigar, and other types of tobacco smoke, especially if inhaled, can also cause COPD. He explained that breathing in secondhand smoke, air pollution, chemical fumes or dusts can contribute to COPD. He noted that, rarely, a genetic condition, alpha-1 antitrypsin deficiency, may play a role in causing COPD, and that if combined with smoking, COPD can worsen very quickly. He stated that some people who have asthma can develop COPD, and that treatment usually can reverse the inflammation and narrowing that occurs in asthma. VA treatment records indicate upper respiratory infections and COPD and that the Veteran smokes one pack per day. VA treatment records include a March 21, 2018 pulmonary note indicating that the Veteran has a history of COPD/emphysema. A January 26, 2017 record indicates a respiratory assessment and notes a normal respiratory pattern. VA treatment records include a record from March 2, 2012 that indicates no sob (shortness of breath), no wheezing, and no cough. An April 6, 2012 record indicates an assessment of chronic smoker/COPD. A record from February 21, 2006 indicates that the Veteran became short of breath while walking and reported a productive cough for 3 days, noting that it increased over the last 24 hours. In October 2010, the Veteran testified before a hearing officer at the RO stating that he never noticed his shortness of breath until he started gaining weight and thought that was the cause of it. He stated that the only thing he could think of is the weight gain after he was diagnosed with diabetes and that he picked up the weight and shortness of breath. He stated that doctors have not given him a reason for his shortness of breath. VA treatment records show the first mention of a respiratory condition was in February 2006, 36 years after his separation from service. While the Veteran is competent to report having experienced symptoms of coughing and shortness of breath intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current pulmonary disability. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, as noted above, the June 2018 VA examiner opined that the Veteran’s respiratory condition is not at least as likely as not related to an in-service injury, event, or disease, including his service-connected diabetes. He indicated instead that the Veteran’s “longstanding use of cigarettes” is the more likely cause of his condition and that none of his service-connected disabilities can cause or aggravate his condition. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes that his pulmonary disability is related to service or due to a service-connected disability, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examination and opinion. For the reasons described above, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a pulmonary disability; therefore, the claim must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for sleep apnea. In September 2016, the Board remanded the claim for service connection for sleep apnea to obtain a VA examination and medical opinion, specifically addressing whether the Veteran’s claimed condition was caused or aggravated by one or more of the Veteran’s service-connected disabilities. Accordingly, the AOJ ensured that the Veteran underwent a VA examination for sleep apnea in June 2018. The June 2018 report indicates that the Veteran has a diagnosis of obstructive sleep apnea from 2009, while also noting that the Veteran has not had a sleep study to confirm a diagnosis of sleep apnea, believes he does not have sleep apnea, and would refuse a sleep study. According to the examination report, the Veteran was seen in the intensive care unit at a VA medical center in 2009. He was in a coma from uncontrolled diabetes, and he appeared to have apneic spells and excessive snoring. He was placed on a CPAP machine and mask, but he could not tolerate it. At the June 2018 examination, both the Veteran and his wife reported no apneic spells at night and no excessive snoring. The Veteran indicated to the examiner that he did not believe he had sleep apnea. Notably, the Veteran filed his claim of service connection for OSA following the above-noted 2009 incident at the VA medical center’s intensive care unit. Although the it was initially thought that the Veteran had OSA, it appears that the symptoms during a diabetic coma were acute and isolated because neither the Veteran nor his wife has reported any subsequent symptoms. According to the June 2018 examination report, the Veteran and his wife specifically deny OSA symptoms and the Veteran stated that he does not believe that he has this condition. In summary, the medical evidence does not show, and the Veteran specifically denies, having OSA. Accordingly, service connection for OSA is not warranted because the Veteran does not have a chronic OSA condition. 3. Entitlement to service connection for hypothyroidism, claimed as weight gain. In September 2016, the Board remanded the claim for service connection for a disability manifested by weight gain to obtain a VA examination and medical opinion specifically commenting on whether the Veteran’s weight gain is attributable to any of the Veteran’s service-connected disabilities. The examiner in June 2018 did not provide an opinion as to whether the Veteran’s weight gain is associated with OSA because the examiner found that the Veteran did not have a current OSA disability. The Veteran has asserted that his weight gain could be related to his service-connected disabilities, including diabetes and/or his service-connected psychiatric disorder, and/or peripheral vascular disease. It is certainly reasonable to infer that the Veteran’s service-connected disabilities result in an inability to exercise and lack of motivation to lose weight; however, the Board notes that service connection has already been established for these underlying disabilities, and weight gain/obesity is not considered a disease or disability for VA purposes. Furthermore, the Veteran has not asserted that his weight gain has caused or aggravated a disability not yet service-connected. The general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a "disease" for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and, therefore, may not be service-connected on a direct or secondary basis. The opinion notes that particularities of body type, such as being overweight or underweight, do not, of themselves, constitute disease or disability subject to service connection. Id. The opinion further held that, because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service "event" for the purposes of establishing service connection. Furthermore, the opinion noted that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet this criteria, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). While obesity is often associated with OSA, and could potentially be considered “an intermediate step” linking one or more of the Veteran’s service-connected disabilities to OSA, the Veteran has asserted that he does not have OSA, and the medical evidence of record does not show otherwise. In other words, service connection for OSA is denied based on no current disability and therefore the Veteran’s weight gain is not relevant to that claim. Moreover, to the extent that the Veteran argues that his weight gain resulted from his service-connected disabilities, this argument is also not relevant to the issue of service connection for weight gain because those potentially weight-gaining conditions are already service-connected; and, the has not asserted that such weight gain/obesity has caused a secondary condition not yet service-connected. Thus, while the evidence shows that the Veteran gained weight following service, such weight gain, in and of itself, is not considered a disease or injury for which direct or secondary service connection may be granted; and, the medical evidence does not show that the Veteran has an underlying thyroid condition or other cause of weight gain not yet service-connected. See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities) (does not contemplate a separate disability rating for obesity). Accordingly, as obesity or being overweight is not a disability for VA compensation purposes, the claim for service connection for obesity must be denied. See Marcelino, supra; see also Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004) (holding that VA's discretion over the rating schedule is insulated from judicial review and that 'review of the content of the rating schedule is indistinguishable from review of what should be considered a disability'). (Continued on the next page)   Accordingly, service connection for weight gain/obesity is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Labi, Associate Counsel