Citation Nr: 21008360 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 13-36 168 DATE: February 16, 2021 ORDER Service connection for a respiratory condition to include chronic obstructive pulmonary disorder (COPD), restrictive lung disease (RLD) and tuberculosis is denied. Service connection for sleep apnea is granted. FINDINGS OF FACT 1. A chronic respiratory disability (other than sleep apnea) was not incurred in or aggravated by active service and is not secondary to a service connected disability. 2. The Veteran’s previously service-connected lower back, bilateral knee, shoulder, foot, and mental health disabilities caused the Veteran to become obese, and obesity was a substantial factor in the Veteran developing sleep apnea; and the Veteran’s sleep apnea would not have occurred but for the obesity caused by the Veteran’s previously service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory condition to include chronic obstructive pulmonary disorder (COPD), restrictive lung disease (RLD) and tuberculosis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304; 3.307; 3.309; 3.310; 4.14. 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310; VAOPGCPREC 1-2017 (January 6, 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from March 1985 to August 2000. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal 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 February 2019 and June 2020, the Board remanded this matter for further development. Further development in substantial compliance with the Board’s previous remand instructions. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like bronchiectasis, when manifested to a compensable degree within a year of separation from service; or there is continuity since separation from service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for diseases that are proximately due to or aggravated by a previously service-connected disability. 38 C.F.R. § 3.310. Obesity may also be a linking condition between a previously service-connected disability and a secondary disability if the following factors are met: a previously service-connected disability caused the Veteran to become obese; obesity due to a previously service-connected disability was a substantial factor in developing a secondary disability; and the secondary disability would not have occurred but for the obesity caused by the service-connected disability. VAOPGCPREC 1-2017 (January 6, 2017). 1. Service connection for a respiratory condition to include chronic obstructive pulmonary disorder (COPD), restrictive lung disease (RLD) and tuberculosis is denied. At issue is whether the Veteran is entitled to service connection for a respiratory condition to include chronic obstructive pulmonary disorder (COPD), restrictive lung disease (RLD) and tuberculosis. As discussed below, the Veteran is being granted service connection for sleep apnea. The Veteran’s contends that he developed a chronic respiratory disability during service as a result of treatment for pneumonia or is secondary to sleep apna. In connection with his claim, the was afforded a VA examination in May 2011. The examiner opined that the Veteran’s current respiratory disability was less likely related to treatment for pneumonia. The Veteran was afforded another examination in October 2020. The examiner opined that a review of medical literature does not support a relationship between the Veteran’s claimed respiratory condition and sleep apnea, and that any connection between the two is ultimately an illusion based on the similarity of the symptoms of sleep apnea, and the Veteran’s claimed respiratory symptoms. Based on the foregoing, the Board concludes that a grant of service connection either on a direct or secondary basis for a chronic respiratory disability is not warranted. To the extent that the Veteran believes that his chronic respiratory disability is either etiologically related to service or secondary to his sleep apnea, as a lay person he has not shown the medical competency to render such an opinion. Accordingly, his belief is outweighed by the competent examinations of record that were rendered by health care providers that have the medical training and experience to provide such opinions. In rendering this decision, the Board notes that procedural history idiosyncratic to this case indicates that both the Veteran and VA have treated as being linked together. To the extent that the Veteran’s claimed respiratory symptoms can be attributed to his sleep apnea, the practice of evaluating the same disability (in this case the debilitating effect of a respiratory condition) under various diagnoses (in this case COPD, RLD, tuberculosis, and sleep apnea), would be impermissible pyramiding. 38 C.F.R. § 4.14. 2. Service connection for sleep apnea is granted. At issue is whether the Veteran is entitled to service connection for sleep apnea. The weight of the evidence indicates that the Veteran is entitled to service connection. The Veteran’s treatment records indicate that the Veteran has a current diagnosis of sleep apnea and obesity. The Veteran has been previously granted service connection for lower back, bilateral knee, shoulder, foot, and mental health disabilities. See July 2010 Rating Decision Code Sheet. The Veteran underwent a VA examination in October 2020. The examiner opined that the Veteran’s sleep apnea was more likely than not due to the Veteran’s obesity, because the Veteran’s treatment records are positive for obesity; and pertinent medical literature indicates that there is a strong association between obesity and sleep apnea. Additionally, the examiner opined that the Veteran’s previously service-connected lower back, bilateral knee, shoulder, foot, and mental health disabilities were factors that contributed to the Veteran’s obesity. Nevertheless, the examiner also opined that obesity was a complex multifactorial condition caused by multiple factors, and the examiner clarified that the record did not include evidence that would rule out other potential factors that can contribute to obesity including: genetics, environment, economic, caloric intake, and social aspects. The weight of the evidence indicates that the Veteran is entitled to service connection. The Veteran’s treatment records clearly indicate that the Veteran has a current diagnosis of sleep apnea, and the Veteran’s claims file clearly indicates that the Veteran has been previously granted service connection for sleep apnea. Finally, the October 2020 VA examiner clearly indicated that obesity was a substantial factor in the Veteran developing obesity, and, but for the Veteran’s obesity, the Veteran would not have developed sleep apnea. The only remaining question then for the Board to consider is whether the Veteran’s obesity was or was not caused by his previously service-connected disability. The October 2020 VA examiner opined that the Veteran’s previously service-connected lower back, bilateral knee, shoulder, foot, and mental health disabilities were factors that contributed to the Veteran’s obesity. The Board affords this great weight and concludes that the Veteran’s obesity was caused by the Veteran’s previously service-connected disabilities; and service connection for sleep apnea is warranted. VAOPGCPREC 1-2017 (January 6, 2017). In making this determination, the Board is cognizant that the examiner also opined that clarified that the record did not include evidence that would rule out other potential factors. As a matter of law however, the Board is prohibited afford this portion of the opinion any weight. In order for the Board to afford any weight to a medical opinion, it must be based on the application of reliable principles and methods to sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). By the examiner’s own admission, the record did not contain sufficient facts and data in order to determine whether or not any other potential factors did or did not contribute to the Veteran’s obesity. Thus, the Board must balance the portion of the medical opinion which clearly identifies the Veteran’s previously service-connected disabilities as known risk factors for obesity against the portion of the opinion which indicates that there is no evidence to determine one way or another whether other factors could have contributed to the Veteran’s obesity. The evidence is sufficient to place a reasonable fact finder in the state of equipoise, and the tie must go to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the weight of the probative evidence of record simply demonstrates that obesity served as a linking condition between the Veteran’s previously service-connected disabilities and a current diagnosis of sleep apnea. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for sleep apnea is granted. 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.