Citation Nr: 21071566 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-02 481 DATE: November 30, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as due to allergic rhinitis and sinusitis is denied. Entitlement to service connection for obstructive sleep apnea as due to allergic rhinitis and sinusitis; tinnitus; and depressive disorder is denied. FINDINGS OF FACT 1. The Veteran's COPD is not related to service, and is not caused or aggravated by a service-connected disability. 2. The Veteran's sleep apnea is not related to service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Service connection for COPD, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012)38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). 2. Service connection for sleep apnea, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012)38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service with the Navy from January 1963 to January 1967. This matter is on appeal from a March 2018 rating decision. The Veteran was afforded a hearing before the undersigned Judge in January 2021. A transcript of the hearing has been associated with the claims record. In February 2021 the Board remanded these issues for additional development. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). COPD The Veteran's service treatment records demonstrate that in January 1963 it was noted that the Veteran had colds and shortness of breath occasionally with exertion. He also had rheumatic fever 7 years ago at age 12 with no recurrence or complications. A February 1963 service treatment record provided a diagnosis of acute pharyngitis and bronchopneumonia. An April 1964 service treatment record indicated that the Veteran had a cold for the past 2 weeks while a January 1965 service treatment record noted that the Veteran had experienced intermittent coughing for the past year. The diagnosis was chronic sinusitis. The Veteran's January 1967 separation examination was negative for treatment or complaints of a respiratory disability. The Veteran underwent a VA examination in February 2018. The examiner found that it was less likely than not that the Veteran's COPD was due to sinusitis and stated, "sinus x-rays today do not verify the diagnosis of chronic sinusitis." In a separate February 2018 VA examination, the examiner found no evidence of chronic sinusitis and changed the Veteran's diagnosis to allergic rhinitis. At his January 2021 hearing, the Veteran testified that at each duty station he was assigned to in service he had to go to sick bay at least once due to issues breathing. The Veteran stated that he had problems with high humidity and each station that he was assigned to was close to the ocean and so may have affected the reason why he was treated in service. Per the February 2021 Board remand instructions, the Veteran underwent a VA examination in July 2021. The VA examiner opined that the Veteran's COPD was less likely than not caused by the claimed in-service event, injury or illness. The examiner noted that while the submitted lay statements from the Veteran regarding the relationship between sinusitis and COPD were reviewed, the medical literature search of the examiner showed no association between COPD and sinusitis. The Veteran was noted to have a risk factor of previously being a smoker while also having possible exposure to dust and chemicals as a farmer. The Veteran's COPD was more likely related to his smoking. The examiner also found that the Veteran's COPD was not aggravated beyond its normal progression by the Veteran's service-connected sinusitis or allergic rhinitis. The examiner also noted that the Veteran's service treatment records indicated no documentation of chronic respiratory issues during his military service and per the Veteran's statements, it did not appear that COPD occurred during his military service as it occurred later in his life. In an August 2021 addendum opinion, the July 2021 VA examiner opined that it was less likely than not that the Veteran's COPD was the result of his service-connected sinusitis or allergic rhinitis. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for COPD to include as secondary to a service-connected disability is not warranted. As there is a current diagnosis of COPD the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Notably, while the Veteran's service treatment records demonstrate that the Veteran was treated during service for colds and chronic sinusitis, the Board notes that the Veteran's service treatment records are negative for complaints or treatments for a chronic respiratory disability to include at his separation examination. Additionally, the only medical opinions addressing the etiology of the COPD disability weigh against the claim as the February 2018 VA examiner and July 2021 VA examiner indicated that it was less likely than not that the Veteran's COPD disability was related to service. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for COPD is not warranted on a direct basis. Regarding service connection on a secondary basis, the Board again notes that the Veteran asserts that his COPD disability is either caused or aggravated by his service-connected allergic rhinitis and sinusitis. However, the Board finds that the weight of the evidence is against a finding that the Veteran's current COPD disability is etiologically related to the Veteran's service-connected allergic rhinitis and sinusitis disabilities. Notably, the only medical opinions addressing the etiology of the COPD disability on a secondary basis weigh against the claim. Specifically, the July 2021 VA examiner on the July 2021 VA examination report and in an August 2021 addendum opinion opined that it was less likely than not that the Veteran's COPD disability was due to or aggravated by his allergic rhinitis and sinusitis disabilities. The examiner also found that the etiology of the Veteran's COPD was most likely due to his past history of smoking. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for COPD is not warranted on a direct or secondary basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for COPD. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). Sleep Apnea The Veteran's service treatment records are negative for treatment or complaints related to a sleep disorder disability. The Veteran underwent a VA examination in February 2018 VA. The examiner also found it less likely than not that the Veteran's sleep apnea was due to sinusitis and provided a rationale where, "sinus x-rays today do not verify the diagnosis of chronic sinusitis." At the January 2021 hearing, the Veteran testified that his claim for sleep apnea should be also considered as secondary to service-connected tinnitus as well as his service-connected depressive disorder. Per the February 2021 Board remand instructions, the Veteran underwent a VA examination in July 2021. The VA examiner opined that the Veteran's sleep apnea was less likely than not caused by the claimed in-service event, injury or illness. The examiner noted the submitted lay statements from the Veteran regarding the relationship between sinusitis and sleep apnea, however, the Veteran's sleep apnea was most likely related to the Veteran's obesity as this was the "best documented risk factor" for obstructive sleep apnea. As a result, the examiner found that it was less likely than not that the Veteran's sleep apnea was a result of a service connected disability. The examiner noted that the Veteran had other risk factors such as obesity, neck circumference, older age and male gender. The examiner also found that the Veteran's sleep apnea was not aggravated beyond its normal progression by the Veteran's service-connected sinusitis, allergic rhinitis, tinnitus or depression. The examiner also noted that nasal congestion was found to be a less well established risk factor for sleep apnea and as a result, the more likely risk factors for the Veteran's sleep apnea were his obesity, neck circumference, older age and male gender. In an August 2021 addendum opinion, the July 2021 VA examiner opined that it was less likely than not that the Veteran's sleep apnea was the result of his service-connected tinnitus as there was no medical evidence of record that sleep apnea was caused or aggravated by tinnitus. The examiner also opined that it was less likely than not that the Veteran's sleep apnea was the result of his service-connected depression as there was no medical literature showing that a mental health condition caused or aggravated sleep apnea. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for sleep apnea to include as secondary to a service-connected disability is not warranted. As there is a current diagnosis of obstructive sleep apnea the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board again notes that the Veteran's service treatment records are negative for complaints or treatments for a chronic sleep disability to include at his separation examination. Additionally, the only medical opinions addressing the etiology of the sleep apnea disability weigh against the claim as the February 2018 VA examiner and July 2021 VA examiner indicated that it was less likely than not that the Veteran's sleep apnea disability was related to service. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for sleep apnea is not warranted on a direct basis. Regarding service connection on a secondary basis, the Board again notes that the Veteran asserts that his sleep apnea disability is either caused or aggravated by his service-connected allergic rhinitis and sinusitis; tinnitus or depressive disorder disabilities. However, the Board finds that the weight of the evidence is against a finding that the Veteran's current sleep apnea disability is etiologically related to the Veteran's service-connected allergic rhinitis and sinusitis; tinnitus or depressive disorder disabilities. Notably, the only medical opinions addressing the etiology of the COPD disability on a secondary basis weigh against the claim. Specifically, the July 2021 VA examiner on the July 2021 VA examination report and in an August 2021 addendum opinion opined that it was less likely than not that the Veteran's sleep apnea disability was due to or aggravated by his allergic rhinitis and sinusitis; tinnitus and depressive disorder disabilities. The examiner also found that the more likely risk factors for the Veteran's sleep apnea were his obesity, neck circumference, older age and male gender. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for sleep apnea is not warranted on a direct or secondary basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). All Disabilities The Board notes the Veteran's contentions regarding the etiology of his claimed COPD and sleep apnea disabilities. To the extent that the Veteran himself contends that a medical relationship exists between his claimed COPD and sleep apnea disabilities and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that COPD and sleep apnea disabilities are not disabilities subject to lay diagnosis as these diagnoses require medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed COPD and sleep apnea disability etiologies. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiners provided detailed rationale in support of their opinions and cited to the relevant evidence. For this reason, the VA examiners' opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for COPD and sleep apnea disabilities. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, Counsel 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.