Citation Nr: 21074638 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-28 735 DATE: December 15, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is denied. Service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The Veteran's COPD is not shown to be causally or etiologically related to his military service or caused or aggravated by a service-connected disability. 2. The Veteran's OSA is not shown to be causally or etiologically related to his military service or caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for OSA have not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1970 to September 1971 and September 1972 to February 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. These claims were previously before the Board in January 2019 and June 2021, ath which times they were remanded for further development, to include new VA disability examinations and medical opinions. Such were obtained in August 2021. The Board finds that there has been substantial compliance with its directives and may now proceed with a decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the Veteran initially requested a hearing before the Board in his substantive appeal. However, in a letter sent to VA in April 2018 and November 2018, he withdrew that request. Service Connection To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see also Davidson v. Shinseki, 581 F.3d (Fed. Cir 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends his diagnosed COPD and OSA are related to his service, to include his service-connected residuals of lung cancer. In the alternative, he contends that the conditions were aggravated by the lung cancer residuals. However, the Board must find that service connection is not warranted for either condition on any basis. Service treatment records from both periods of the Veteran's service show several visits to sick call for respiratory ailments. A December 1974 visit to sick call with complaints of respiratory symptoms, to include a cough and runny nose. The Veteran again visited sick call in January 1983 with complaints of respiratory problems, to include coughing and stuffy nose. He was diagnosed at that time with an upper respiratory infection. In June 1984, he underwent another medical examination and denied observing frequent trouble sleeping, chronic cough, or shortness of breath. In December 1985 he was seen with complaints of sore throat, ear infection, cough. A January 1986 note showed complaints of cold symptoms. At a June 1990 medical examination, undertaken for purposes of separation, the Veteran denied shortness of breath, chronic cough, or frequent trouble sleeping. In a June 2020 VA examination for COPD, the examiner noted the Veteran was treated for lung cancer with chemotherapy and radiation in between 2002 and 2007. The examiner noted that the Veteran had multiple respiratory disorders, to include lung cancer and COPD, with most of his limitations due to restrictive lung disease. The examiner concluded the Veteran's COPD was less likely than not due to service. In support of this conclusion, the examiner provided data on the symptoms associated with COPD, to include wheezing, difficulty breathing, and current medical understanding of the cause of COPDlong term inhalation of certain gases, especially cigarette smoke. The record shows the Veteran smoked cigarettes for nearly 40 years. The examiner then indicated the Veteran's treatment records did not show medical complaints or references to COPD which would support finding it is began in or is related to service. The Board notes the opinion was found inadequate to the decide the claim because the examiner did not address whether there was a link between lung cancer and COPD. Thus, the claim was remanded and the RO obtained a new medical opinion in August 2021. At that time, the Veteran reported wheezing, dyspnea, began to appear in the around the time he was diagnosed with small cell lung cancer in 2006. His treatment for cancer included chemotherapy, radiation treatment in 2007, which the examiner found led to the development of restrictive lung disease. The examiner added that restrictive lung disease was noted in 2011. He also noted medical references to COPD began in 2011 as well. Altogether, the examiner found three respiratory disorders: tumors or neoplasms, in remission; restrictive lung disease; and COPD. He also found there was substantial overlap between the respiratory symptoms. The examiner explained that the Veteran's COPD was less likely than not due to lung cancer. The examiner pointed out that the Veteran had smoked excessively for around 40 years before medical references to COPD were found in the record. Also, diagnostic testing in 2011 noted restrictive lung disease instead of COPD. Although the examiner acknowledged there was an overlap between the symptoms caused by lung tumors, restrictive lung disease, and COPD, he indicated that based on his medical knowledge and understanding, lung tumor treatment led to the development of restrictive lung diseasebut not COPD. The examiner also concluded the Veteran's COPD was not aggravated by his service-connected lung cancer residuals, as review of the record showed no symptoms which would indicate aggravation. With regards to the Veteran's August 2021 examination for a sleep disorder, the Veteran reported that nighttime waking, snoring, and daytime fatigue led to a sleep study in 2019 which diagnosed severe OSA. The examiner opined the Veteran's sleep disorder was not due to service or linked to his lung cancer. The examiner acknowledged the Veteran's assertions that he snored during service but indicated snoring was a symptom that may be related to many different conditions; thus, he did not find the symptom alone was sufficient to find that a sleep disorder existed during service. He added that, without more objective in-service indicators of a sleep disorder, there was insufficient evidence to support finding the Veteran's OSA was due to service. The examiner also indicated that OSA develops differently than cancer, adding that the disorders are different and do not affect each other. So, he concluded lung cancer did not cause or aggravate OSA. On the question of aggravation, the examiner concluded that there was no evidence of any sort of relationship, to include aggravation, between the Veteran's lung cancer and his OSA. Rather, the two disabilities had separate and distinct disease processes that were not related. The Board gives great probative weight to the opinions of the August 2021 VA examiners. They each addressed the Veteran's contentions and provided detailed rationale when thoroughly explaining that COPD and OSA developed as a result of factors other than service, and were not aggravated by the Veteran's lung cancer or its residuals. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly-reasoned opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there are no contrary medical opinions of record. The Board acknowledges the Veteran's sincere belief that his COPD and OSA were caused or aggravated by his service-connected lung cancer residuals. However, the Board finds that such assertions provide no persuasive evidence in support of the claims. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that they observed and which is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The matter of the etiology of the disability at issue here is one within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is a layperson without expertise, he is not competent to render a probative opinion as to this matter. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board may consider the facts of a particular case to determine the layperson's competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the matter of whether the Veteran's COPD and OSA are etiologically related to, or aggravated by, the residuals of lung cancer is not a matter within the realm of knowledge of a layperson; rather, such involves complex questions that require advanced education, training and expertise. Id. Hence, the lay assertions in this regard have no probative value. In reaching its conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. The Board regrets a more favorable decision could not be reached in this case. The claims are denied. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.