Citation Nr: 21009614 Decision Date: 02/23/21 Archive Date: 02/22/21 DOCKET NO. 12-33 541A DATE: February 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for asthma, to include as secondary to OSA is denied. Entitlement to service connection for hypothyroidism with morbid obesity, to include as secondary to service-connected posttraumatic stress disorder (PTSD), major depressive disorder (MDD), binge eating disorder and cannabis use disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s OSA began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s asthma began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran’s hypothyroidism with morbid obesity is not secondary to service-connected psychiatric disorders and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for asthma, to include as secondary to OSA are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 3. The criteria for service connection for hypothyroidism with morbid obesity due to service or service-connected psychiatric disorders are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from August 1987 to April 1991. This case comes before the Board on appeal of December 2011 and May 2018 rating decisions. The Board notes that the Veteran’s service connection claim for hypertension was granted in the November 2020 rating decision. Therefore, as the service connection claim has been granted, it is resolved and no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning “downstream” issues such as the compensation level assigned for the disability and effective date). Service Connection Generally, to establish service connection 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2019). 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). 1. Entitlement to service connection for obstructive sleep apnea (OSA) Here, the Veteran contends that his OSA was caused or incurred during active duty service. Based on a preponderance of the evidence, the Board disagrees. At the outset, the Veteran has a current diagnosis of obstructive sleep apnea. The Veteran underwent a sleep study in 2005, which confirmed OSA. See September 2020 VA examination. During the examination, the Veteran reported persistent daytime hypersomnolence with lack of concentration and focus due to his condition. Thus, the first element of service connection is met. However, the second element which requires an in-service incurrence has not been met. Specifically, the Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or a diagnosis of obstructive sleep apnea. In fact, on his separation examination, the Veteran indicated that he was in fair health and did not report daytime sleepiness, or lack of concentration or focus, which are the symptoms he reported during his OSA examination. See STRs. The Board acknowledges the Veteran’s statement that during service his roommates complained about his snoring loudly and seemingly gasping for air during his sleep. See Statement in support. The Veteran’s alleged snoring and gasping for air is lay observable symptoms, thus competent lay evidence. However, the Veteran’s contentions are given less probative value as the Veteran did not report symptoms of persistent daytime hypersomnolence or lack of concentration or focus. In his January 1989 self-assessment, the Veteran failed to report any symptoms associated with OSA and marked “no” to frequent trouble sleeping. Moreover, in his separation examination, the Veteran did not indicate that he suffered from any symptoms associated with his OSA. He did mark “yes” to frequent trouble sleeping, but the physician indicated that the Veteran had insomnia, worry and nervousness because of his Chapter 14 discharge. Furthermore, in the September 2020 VA examination, the examiner opined that the Veteran’s OSA was less likely than not incurred in or caused by service. The examiner reasoned that there was no medical evidence provided per review of the STRs and available medical records for any complaints of poor sleep or fatigue until approximately 2003. The examiner noted that in 2003, per the Veteran’s private doctor that he had fatigue related to depression. The private doctor advised the Veteran to obtain a sleep study, which was performed in 2005. The examiner explained that the diagnosis was twelve years after the Veteran’s discharge from service. The examiner continued that there were no noted indications that the sleep apnea occurred prior to this period. As such, the examiner concluded that due to his findings the Veteran’s sleep apnea would not be related to his military service. The Board finds the examiner’s opinion to be competent, credible and highly probative. The examiner reviewed the pertinent evidence, evaluated the Veteran, and provided an opinion based on the evidence. Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran’s OSA was caused by or incurred in service. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 2. Entitlement to service connection for asthma, to include as secondary to OSA Here, the Veteran contends that his asthma was caused by or incurred in military service and/or secondary to his OSA. Based on the preponderance of the evidence, the Board disagrees. At the outset, the Veteran has a current diagnosis of asthma. Thus, the first element of service connection is met. However, the second element is not met. Specifically, the Veteran’s STRs are silent for any complaints, treatment, or a diagnosis of asthma. The Veteran underwent chest x-rays during service in December 1988 and February 1991. In December 1988, the Veteran’s lungs were well inflated and free of acute or active chronic inflammatory process. Then, in the February 1991 exam, no findings were reported. Moreover, in the February 1991 separation examination, the Veteran marked “no,” to asthma, shortness of breath, or chronic cough. Likewise, the clinical evaluation on separation showed that the Veteran’s lungs and chest were normal. Conversely, in the November 2020 VA examination, the Veteran reported that the onset of his asthma was sometime between 1987 through 1991, although he could not give a more exact date. The Veteran explained that sometime during service he developed asthma. He stated that he was noted to snore excessively while sleeping and was told he was not breathing well. However, he never had any issues of wheezing or continuous coughing associated with cough variant asthma. Likewise, the Veteran did not receive any treatment for asthma while in service and stated that he really had no issues until 1997, when a doctor gave him and inhaler and told him he had seasonal allergies. The Board acknowledges the Veteran’s statements regarding the onset of his asthma. The symptoms of asthma are lay observable, thus competent lay evidence. However, outside of being told he snored excessively and was not breathing well, the Veteran did not report any symptoms associated with asthma and the diagnosis of asthma requires medical training or expertise. Additionally, as discussed above, the Veteran indicated that he did not have asthma, chronic cough, shortness or breath on his separation examination. Moreover, in his enlistment examination for the reserves in February 1992, the Veteran indicated that he had asthma until the age of 4 or 5, but there was no indication that he had asthma at that time. Given the conflicting evidence, the Veteran’s statements regarding the onset of his asthma is given little probative weight. Furthermore, in the November 2020 medical opinion, the examiner opined that the Veteran’s asthma was less likely than not incurred in or caused by active duty service. The examiner reasoned that the Veteran did not have a diagnosis of asthma in service. He was diagnosed with asthma in 2004 per the records. The Veteran did not have episodes of wheezing or chronic cough. All physical exams of the lung were normal and CXR’s were all negative. The examiner explained that the first PFT (pulmonary function test) was done in 2005 and it was normal. Likewise, the examiner noted that the Veteran’s current PFT done in November 2020 was also normal. The examiner explained that the Veteran is morbidly obese and is a chronic marijuana smoker. The examiner concluded that the Veteran did not appear to have a true diagnosis of asthma during service or the first couple of years post service. The Board finds that the examiner’s opinion to be competent, credible and highly probative. The examiner reviewed the pertinent record, interviewed the Veteran, and provided an opinion based on medical principles and the evidence. The Board adds that secondary service connection is not warranted. As decided herein, the Veteran’s OSA is not service-connected; therefore, even if his asthma is secondary to OSA, service connection for asthma is not warranted. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 3. Entitlement to service connection for hypothyroidism with morbid obesity, to include as secondary to service-connected posttraumatic stress disorder (PTSD), major depressive disorder (MDD), binge eating disorder and cannabis use disorder Here, the Veteran contends that his hypothyroidism with morbid obesity was caused or incurred in service and/or secondary to his service-connected psychiatric condition. Based on the preponderance of evidence, the Board disagrees. At the outset, the Veteran has a current diagnosis of hypothyroidism. As evidenced in the September 2020 VA examination, the Veteran was diagnosed with hypothyroidism in April 2002. Thus, the first element of service connection is met. Conversely, the second element of direct service connection is not met. Specifically, the Veteran’s STRs are silent for any complaints, treatment, or diagnosis of hypothyroidism. In fact, in September 1990, the Veteran’s thyroid function was indicated as normal with a negative history for symptoms of the endocrine system. Additionally, in the February 1991 separation examination, the Veteran’s endocrine system was clinically evaluated as normal. Moreover, in the September VA examination, the Veteran stated that he was diagnosed with hypothyroidism in approximately 2002. He stated that he felt a lump in his throat and had problems with swallowing during that time. Thus, the second element of direct service connection is not met. However, the second element of secondary service connection is met. The Veteran is service-connected for PTSD, MDD, binge eating disorder and cannabis use disorder that he contends caused or aggravated his hypothyroidism. Therefore, to warrant service connection on a secondary basis there must be a nexus, or link, between the Veteran’s hypothyroidism and his service-connected psychiatric condition, which is proven by medical evidence. In that regard, in the September 2020 medical opinion, the examiner opined that the Veteran’s hypothyroidism was less likely than caused by or aggravated by his PTSD, MDD, binge eating disorder and cannabis use disorder. The examiner reasoned that the Veteran did not have a diagnosis or complaints of a psychiatric disorder during his military service. The examiner explained that the Veteran was noted to have had an evaluation for alcohol abuse and was evaluated at that time for mental conditions. However, the examiner stated that the Veteran did not have a diagnosis of PTSD until 2018. The examiner stated that due to the Veteran not having any noted mental health complaints during and none present until his complaint of fatigue related to depression in June 2003, there was no indication that the PTSD caused his risk for hypothyroidism/morbid obesity. Additionally, the examiner reasoned that aggravation is not shown as the Veteran’s thyroid levels have been stable since being placed on Synthroid medication in 2002. (Continued on the next page)   The Board finds that examiner’s opinion to be competent, credible and highly probative. The examiner reviewed the pertinent evidence, evaluated the Veteran, accounted for his lay statements and provided an opinion based on medical principles and evidence. The Board notes that the Veteran was shown to be obese during service, but obesity is not a disability for VA compensation purposes. See Marcelino v. Shulkin, 29 Vet. App. 155, 2018 U.S. App. Vet. Claims LEXIS 64. Additionally, although the Veteran contends that his psychiatric condition caused or aggravated his hypothyroidism, the Veteran does not have the medical training or expertise to provide such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, Associate 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.