Citation Nr: 21000668 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-00 564 DATE: January 5, 2021 REMANDED Service connection for a respiratory disability, to include asthma, chronic obstructive pulmonary disorder, and sleep apnea, is remanded. Service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from January 1969 to August 1970. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. This matter is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in June 2018, and a transcript of the hearing is of record. These matters were previously before the Board, and, in July 2018, June 2019, and April 2020, the Board remanded these matters for further development. Unfortunately, these matters must be remanded again prior to final disposition. 1. Service connection for a respiratory disability, to include asthma, chronic obstructive pulmonary disorder, and sleep apnea, is remanded. At issue is whether the Veteran is entitled to service connection for a respiratory disability. The Veteran underwent a VA examination in August 2020. The examiner diagnosed the Veteran with sleep apnea, and the examiner opined that the most common cause of sleep apnea is obesity and weight gain. Obesity can serve as a linking condition between a previously service-connected disability and another disability; in this case sleep apnea. See VA Office of General Counsel Precedential Opinion (January 6, 2017) (hereinafter VAOPGCPREC 1-2017). Therefore, this matter must be remanded in order to ensure that the evaluation of the Veteran’s claim is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). Specifically, an opinion should be obtained ascertaining whether the Veteran’s obesity is due to any service-connected disability. 2. Service connection for GERD is remanded. At issue is whether the Veteran is entitled to service connection for GERD. Unfortunately, this matter must be remanded for a new VA examination. The Veteran underwent a VA examination in August 2020. The examiner opined that the Veteran’s GERD was less likely than not related to a period of service, because the most common causes were: transient lower esophageal sphincter relaxations; hypotensive lower esophageal sphincter; anatomic disruption of gastroesophageal junction; diet; and medications. Although the Board is pleased that the examiner clearly delineated these reliable principle and methods, the examiner did not explain what facts or data were present (or missing for that matter) from the Veteran’s previous lay reports of symptoms during a period of service or service treatment records were inconsistent with any of these causes. Therefore, this matter must be remanded in order to remedy this omission. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr. The Board notes that, during the August 2020 examination, the examiner did explain why the Veteran’s lay reports should not be afforded much weight. The amount of weight to afford the Veteran’s statements, however, is ultimately a matter for the Board, as a finder of fact, to determine rather than any of the witnesses or experts submitting testimony or opinions. Caluza v. Brown, 7 Vet. App. 498 (1995). Therefore, the examiner, on remand, should discuss how, if at all, the opinion would be different to the extent that the Board found the Veteran’s lay reports credible. Finally, the Board notes that obesity has also been associated with GERD. See Medline Plus Medical Encyclopedia, https://medlineplus.gov/ency/article/000265 .htm. Therefore, the examiner, on remand, should discuss whether or not obesity is a linking condition between a previously service-connected disability and obesity. See VAOPGCPREC 1-2017. The matters are REMANDED for the following action: Arrange to provide the Veteran with a VA medical opinion in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that any of the Veteran’s previously service-connected disabilities or any combination therefore caused the Veteran to become obese? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that obesity was a substantial factor in the Veteran developing sleep apnea? Why or why not? (c.) Is it at least as likely as not (50 percent or more) that obesity was a substantial factor in the Veteran developing GERD? Why or why not? (d.) Is it at least as likely as not (50 percent or more) that but for any obesity caused by the Veteran’s previously service-connected disabilities that the Veteran would not have developed sleep apnea? Why or why not? (e.) Is it at least as likely as not (50 percent or more) that but for any obesity caused by the Veteran’s previously service-connected disabilities that the Veteran would not have developed GERD? Why or why not? (f.) Is it at least as likely as not (50 percent or more) that the Veteran’s GERD was proximately due to or aggravated by a previously service-connected disability? Why or why not? (g.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a current disability of GERD? Why or why not? (h.) Please describe what the medical significance, if any, would be if the Board found the Veteran’s GERD symptomology since a period of service to be credible. In other words, assuming that the reports are true, what is the most plausible medical explanation.? Why? (i.) A VA examiner previously indicated that the most common causes of GERD were: transient lower esophageal sphincter relaxations; hypotensive lower esophageal sphincter; anatomic disruption of gastroesophageal junction; diet; and medications. The examiner should describe what facts and data contained within the claims file would explain why these causes would be unrelated to the Veteran’s period of service or any of the Veteran’s previously service-connected disabilities. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.