Citation Nr: 21013510 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-56 126A DATE: March 9, 2021 ORDER Service connection for obesity, claimed as weight fluctuation with water retention, is denied. Service connection for gastroesophageal reflux disease (GERD) is granted. Service connection for colitis is denied. Service connection for asthma is denied. Service connection for a sleeping disorder, other than sleep apnea, is denied. A total disability based on individual unemployability (TDIU) rating is denied. FINDINGS OF FACT 1. Obesity is not a disability for which service connection may be granted. 2. The weight of the evidence of record shows that it is at least as likely as not that the Veteran’s GERD was incurred during his military service. 3. The evidence of record fails to show an existence of the claimed colitis. 4. The weight of the evidence fails to show that it is at least as likely as not that the Veteran’s asthma was incurred in, caused by, or otherwise is etiologically related to his service. 5. Apart from an obstructive sleep apnea claimed separately and not on review in this appeal, the evidence of record fails to show a stand-alone sleep disorder that is not already covered by a total disability rating for the Veteran’s service-connected posttraumatic stress disorder (PTSD), to include his chronic sleep impairment as an express schedular rating criterion. 6. The Veteran has been comprehensively covered by a combined total schedular disability rating throughout the rating period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for obesity have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for colitis have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 5. The criteria for service connection for a sleep disorder, other than sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 4.14. 6. The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 4.16, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from January 1991 to October 1994. In a November 2017 rating decision, the Regional Office (RO) denied his claims for service connection for weight fluctuation with water retention, colitis, sleeping disorder, asthma, and acid reflux disease. The Veteran appealed. In his February 2017 claim, the Veteran asserted that he is a veteran of the Gulf War Era and has conditions related to his service, to include weight fluctuation with water retention, acid reflux, colitis, asthma, and a sleeping disorder. In seeking service connection for weight fluctuation with water retention, the Veteran is contending that this is the reason why he was discharged from service. His certificate of discharge (DD Form 214) in block 28 does list “weight control failure” as the reason for his separation from service, also known as Chapter 18 discharge. The Veteran’s service treatment records (STRs), to include his July 1994 Chapter 18 physical examination, reflect that he was obese at the time of discharge. His post-service VA and private treatment records show that he eventually became morbidly obese, which continues to the present day. However, obesity itself is not a “disability” for VA benefit compensation purposes. Service connection generally may be granted for a disability incurred in service. See 38 U.S.C. § 1110, 1131. Under sections 1110 and 1131, the term “disability” is not specifically defined but essentially means an impairment in earning capacity due to post-service residuals of a disease or an injury sustained in service. See Palczewski v. Nicholson, 21 Vet. App. 174, 178 (2007). The case law observes that obesity itself, to include any weight fluctuations, is neither a disease nor an injury which VA may compensate. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The Board has been apprised of an array of physiological and psychological effects of obesity. However, the VA regulations bar any grants of monetary awards on an equitable basis not sanctioned by Congress. See Harvey v. Brown, 6 Vet. App. 416 (1994). In the alternative, service connection may be granted for a disability proximately caused or aggravated (made worse) by an existing service-connected disability. See 38 C.F.R. § 3.310. To that end, obesity may be a proximate causal step, that is, an intermediate link in the pathophysiological mechanism by which an existing service-connected disability causes or aggravates a non-service-connected disability. However, the Veteran has not identified any underlying service-connected disability that caused his obesity, or any disability that may have been caused or aggravated by his obesity. Otherwise, the evidence of record viewed as a whole also fails to suggest that “weight fluctuation with water retention” may be associated with any existing service-connected disability, to include posttraumatic stress disorder, staph scalp infection, irritable bowel syndrome, left ankle sprain, and bilateral hearing loss and tinnitus. Establishing an entitlement to service connection requires the evidence to show: (1) the existence of the claimed disability; (2) relevant traumatic event in service, and (3) a causal link between the two. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As such, demonstrating the existence of the claimed “disability” for VA compensation purposes is the foundational legal requirement, without which a claim cannot proceed. Given that the obesity itself is not a disability which VA may compensate and it has not been shown or suggested in this case to have resulted from any of the Veteran’s service-connected disabilities and to have proximately caused or aggravated another disability, the legal criteria for service connection have not been met. Accordingly, service connection for obesity, to include weight fluctuation with water retention, is denied. In seeking service connection for colitis and acid reflux, the Veteran points out that he was put out of the Army in October 1994 and two weeks later his gallbladder was removed because of the above-listed illnesses he had during service. A July 1995 medical evaluation report does reflect that he underwent cholecystectomy in November 1994, due to indigestion of fatty and fried foods. An October 2017 VA esophagal conditions examination report reflect the Veteran had onset of clinical symptoms of pyrosis (heart burn) and acid reflux in service, which had continued to the present day. Accordingly, the Board finds that the evidence of record shows that it is at least as likely as not that the Veteran had incurred his current acid reflux disease in service and thus service connection for acid reflux is granted. In acknowledging the Veteran’s statements as to the onset of his colitis, the Board also notes his December 2018 correspondence, in which he endorses experiencing diarrhea, constipation, abdominal distress, and fecal incontinence, believing them to be the symptoms of colitis. However, absent any suggestion of specialized knowledge, training, or experience in such fields as medicine, epidemiology, or pathophysiology, he is said not to possess the requisite expertise to diagnose medically complex diseases and thus his reports must be corroborated by medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s VA treatment records reflect a July 2013 treatment note with a single reference to medication for spastic colon symptoms dubbed “colitis.” However, the subsequent October 2017, November 2018, and March 2020 comprehensive VA examinations of intestinal conditions reports reflect three medical opinions that the Veteran does not exhibit signs, symptoms, or any other pertinent physical findings of colitis. Rather, based on the comprehensive review of the symptomatology as reported by the Veteran and documented in his STRs, post-service VA and private treatment records, and the three VA examination reports, the Veteran has been diagnosed with an irritable bowel syndrome (IBS) that is already service-connected and not on review here. As discussed, among the fundamental legal requirements for establishing service connection is that the evidence must show the existence of the claimed disability, that exists upon filing the claim or at some point during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the record is ultimately devoid of any medical confirmation that the Veteran has had the claimed colitis upon filing his claim in February 2017 or at any time thereafter. “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (emphasis added in the original). Absent proof of the claimed disability, service connection for that disability is not valid and must be denied. Id. Accordingly, service connection for colitis is denied. In seeking service connection for asthma, the Veteran asserts that he had incurred this condition in service. He explains that he was an armorer and worked on unit weapons after field operations and exercises. In the process, he used liquid solvents and asbestos pads, while the only ventilation was through the barred windows. He then notes that gun powder, solvents, and asbestos were cleared out of his nasal passages on a daily basis when he worked in the arms room. Upon considering the Veteran’s statements in support of his claim, implying his belief that his military duties as an armorer caused his current asthma, such an implicit claim akin to the generalized conclusory lay statements asserting that the current disability is etiologically related to service has little to no probative value. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). The Veteran does not possess the requisite medical expertise of training to render etiological opinions on medically complex subjects. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Otherwise, the evidence of record fails to show that the Veteran’s current asthma was incurred in, caused by, or otherwise etiologically related to service, to include his military armorer duties. Of particular note, the Veteran had separated from service in October 1994. The first documented signs, symptoms, complaints, treatment, or diagnosis that may be associated with asthma is an August 2012 reference to a past medical history of asthma, as reflected in his private treatment records received from Dr. L.S., MD, in February 2017. In November 2017, the Veteran’s was provisionally diagnosed with asthma based on the pulmonary function testing (PFT) results a month earlier. His STRs, to include July 1994 service separation physical examination, reflect no signs, symptoms, complaints, treatment, or diagnosis of asthma. Further, in his contemporaneous self-reported medical history questionnaire, the Veteran had affirmatively denied the same. Then, his July 1995 self-reported medical history reflects that the Veteran had affirmatively denied ever having had or having now any asthma, shortness of breath, chest pain or pressure, or chronic cough. Ultimately, the evidence of records shows that the Veteran had denied having asthma at the time of his separation from service in 1994, the following year he again had affirmatively denied ever having had asthma, and the earliest factually ascertainable signs of asthma dates in August 2012, while nothing in the record competently suggests that the Veteran’s alleged exposure to gun powder, liquid solvents, and asbestos pads caused his asthma. Absent competent evidence showing such a casual link, service connection is denied. In his December 2017 Notice of Disagreement, the Veteran explains that a major symptom of his (now service-connected) PTSD is a sleeping disorder, which he reportedly developed during his deployment to Honduras. Of note, the Veteran’s report of symptoms is consistent with his treatment records. For example, a March 2020 VA sleep clinic note reflects PTSD-related insomnia and parasomnia symptoms such as racing thought when trying to fall asleep, difficulty staying asleep, early morning awakenings, nightmares, sleep talking, sleep terrors, and dream reenactment. This psychiatric symptomatology expressed in regularly terms most closely approximates a chronic sleep impairment expressly listed under the general formula for rating mental disorders and is compensable at 30 percent. See 38 C.F.R. § 4.130. However, during the pendency of this appeal, the Board issued a November 2020 order awarding a grant of service connection for PTSD. In December 2020, the RO effectuated the Board’s award from April 28, 2016, the date of original claim and evaluated as total (100 percent) inclusive of chronic sleep impairment. As such, the Veteran is already being compensated for his PTSD-related insomnia/parasomnia symptoms, while the so-called “rule against pyramiding” unequivocally precludes compensating the same symptomatology twice. See 38 C.F.R. § 4.14. This means that the Board may not separately evaluate the Veteran’s sleeping difficulties due to his PTSD as a stand-alone sleeping disorder. The Board notes, a Veteran’s March 2019 claim for sleep apnea, which is currently under review by the RO, is not on review here, and is distinct from his claim for a sleeping disorder claimed as a major symptom of his PTSD. The record is devoid of any suggestion that the Veteran may have any other sleep disorder. Accordingly, service connection for a sleeping disorder, other than sleep apnea, is denied. In April 2018, the Veteran also filed his claim of entitlement to a TDIU rating. In a November 2018 rating decision, the RO denied the claim. The Veteran appealed. In November 2020, the Board remanded the claim for re-adjudication in light of the grant of service connection for post-traumatic stress disorder (PTSD). In a December 2020 rating decision, the RO effectuated the Board’s award and evaluated the Veteran’s PTSD as totally disabling from the date of original claim received on April 28, 2016. In a concurrent supplemental statement of the case, the RO denied a TDIU rating prior to April 28, 2016, and then returned the appeal to the Board. Neither the Veteran nor his attorney advanced any contention as to why a TDIU rating prior to April 2016 is warranted. As such, the Board has decided the claim based on the evidence of record. Upon considering all evidence of record in light of pertinent laws, the Board has found that a TDIU claim is moot. A TIDU rating is an alternative rating that may be assigned only when a schedular combined disability rating is less than total. See 38 C.F.R. § 4.16. By implication, a TDIU rating may not be assigned for any period already covered by a combined total schedular disability rating. Likewise, under no circumstances may a TDIU rating be assigned for a period beginning more than one year prior to the receipt date of the claim, whether filed formally or informally, or otherwise reasonably raised by the evidence of record. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). In this case, prior to April 28, 2016, the Veteran’s combined disability rating was at 10 percent, which fails to suggest that he was unable to obtain and/or maintain a gainful employment on account of his service-connected disabilities. This is the fundamental legal requirement for establishing an entitlement to a TDIU rating. The earliest evidence of record suggesting that the Veteran’s was no longer able to work on account of limitations imposed by his service-connected disabilities rather than due to the limitations imposed by his non-service-connected heart disease and strokes is his application for an increased compensation based on unemployability (VA Form 21-8940) received on April 5, 2018. The record is devoid of any earlier explicit or implicit statement that may construed to that end. Of note, neither the Veteran nor his attorney pointed out a single piece of the evidence that may suggest otherwise. Ultimately, the Veteran was awarded a combined total disability rating from April 2016, which is two years prior to the date of receipt of his April 2018 TDIU claim. This fact, viewed in light of pertinent laws unequivocally precluding an assignment of a TDIU rating for any period beginning more than one year prior to the receipt date of claim or to be assigned concurrently with a combined total disability rating, effectively renders the Veteran’s TDIU claim moot. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Accordingly, a TDIU rating is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.