Citation Nr: 21022251 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-00 564 DATE: April 15, 2021 ORDER Service connection for sleep apnea is granted. Service connection for gastroesophageal reflux disease (GERD) is granted. FINDINGS OF FACT 1. Obesity served as a linking condition between the Veteran’s previously service-connected disabilities (a cardiac disability and depression) and a current diagnosis of sleep apnea. 2. Obesity served as a linking condition between the Veteran’s previously service-connected disabilities (a cardiac disability and depression) and a current diagnosis of GERD. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310; VAOPGCPREC 1-2017 (January 6, 2017). 2. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1101, 1110; 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 January 1969 to August 1970. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 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 July 2018, June 2019, April 2020, and January 2021, these matters were remanded for further development. Substantial compliance with the Board’s previous remand instructions has been completed. 1. Service connection for sleep apnea is granted. 2. Service connection for GERD is granted. At issue is whether the Veteran is entitled to service connection for sleep apnea and GERD. The weight of the evidence indicates that the Veteran is entitled to service connection for sleep apnea and GERD. 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. Service connection may also be granted on a secondary basis for disease that are proximately due to or aggravated by previously service-connected diseases. 38 C.F.R. § 3.310. Additionally, obesity may serve as a linking condition between a previously service-connected disability and a secondary disability. VAOPGCPREC 1-2017 (January 6, 2017). The Veteran’s treatment records indicated that the Veteran has been diagnosed with sleep apnea and GERD. An August 2020 VA opinion indicated that the Veteran’s sleep apnea was caused by obesity. The Veteran was provided a VA opinion discussing the nature and etiology of the Veteran’s sleep apnea and GERD in February 2021. The examiner opined that in both cases that the Veteran was obese, and that the Veteran’s obesity contributed to the Veteran’s sleep apnea and GERD. The examiner further opined that the Veteran’s obesity was due to poor diet choices and lack of appropriate exercise. The Veteran has been previously granted service connection for both a cardiac disability and depression. See January 2021 Rating Decision Code Sheet. The Veteran testified at a personal hearing before the Board in June 2018 that the his cardiac disability was severe enough to cause labored breathing with activity as mild as walking up a flight of stairs. Private treatment records indicate which that the Veteran’s cardiac disability causes dyspnea or labored breathing. Taken together the Board is convinced that the Veteran’s cardiac disability is severe enough to prevent the Veteran from exercising appropriately enough to prevent obesity. A July 2019 VA psychiatric examination indicated that the Veteran’s depression was severe enough to cause occupational and social impairment with deficiencies in most areas including judgement. The weight of the evidence indicates that the Veteran is entitled to service connection for sleep apnea and GERD. The Veteran has clearly been diagnosed with both sleep apnea and GERD. As previously noted, the Veteran has been granted service connection for a cardiac disability and depression. A VA examiner opined in February 2021 that the Veteran’s obesity contributed to the Veteran’s sleep apnea and GERD, but that the Veteran’s obesity was due to poor choice in diet and a lack of exercise. Nevertheless, the Veteran’s depression was severe enough to cause deficiencies in judgement, which the Board finds is sufficient to explain the Veteran’s poor dieting choices. Additionally, the Veteran provided competent testimony that his cardiac disability prevented him from walking up a flight of stairs without labored breathing. These credible reports are corroborated by private treatment records which indicate that the Veteran’s cardiac disability causes dyspnea or labored breathing. The Board also notes that this is consistent with VA’s previous finding that the Veteran’s cardiac disability was severe enough to warrant a total disability rating. See January 2021 Rating Decision Code Sheet. Taken together the Board is convinced that the Veteran’s cardiac disability and depression were severe enough to prevent the Veteran from dieting and exercising properly, which in turn led to obesity. This obesity in turn caused the Veteran’s sleep apnea and GERD. In making this determination, the Board is cognizant that the February 2021 VA examinations – upon which the Veteran’s grants of service connection rest – actually indicated that the Veteran’s GERD and sleep apnea were not proximately due to or aggravated by the Veteran’s previously service-connected disabilities. Nevertheless, the examiner’s conclusion appears to be based on a determination that the Veteran obesity was the result of his choice in maintaining a poor diet and that paraplegic patients have managed to maintain healthy diets (suggesting that if paraplegic patients can exercise adequately enough to avoid obesity than the ability of more able bodied people to lose weight is also a choice), and the Board cannot afford this rationale much weight. It is unclear from to the Board how analogy to obesity in paraplegic patients is a reliable principle or method for determining the nature and etiology the obesity of a Veteran with a severe cardiac disability and a severe mental disorder; as opposed to say comparing the Veteran’s case to other patients with cardiac disabilities or mental disorders. The examiner’s opinion lacks the precision and detail of an adequate medical opinion; merely stating that paraplegic patients can control their weight. Taken together, the Board is not persuaded by the February 2021 examiner’s ultimate conclusions, because, as discussed above, the rationale is reliant on analogies to patients with different symptoms than the Veteran (paraplegic patients rather than patients with cardiac disabilities or mental disorder); and lacks adequate precision and detail. Therefore, the examiner’s ultimate conclusion is not based on the application of reliable principles and methods to adequate facts and data, and the Board cannot afford the examiner’s ultimate conclusions much weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Stripped of the inadequate rationale, what remains of the examiner’s opinion is essentially that the obesity contributed to the Veteran’s sleep apnea and GERD, and that the diet and exercises are factors that contribute to a person’s weight. The Board does afford these conclusions great weight, because the examiner explicitly identifies the medical literature relied upon in making such a conclusion. See Nieves-Rodriguez. Additionally, this conclusion is consistent with an August 2020 VA examiner who indicated that the Veteran’s sleep apnea was due to weight gain; as well as medical literature previously identified in the record (although admittedly not entered in its entirety) indicating that GERD is associated with obesity. See Medline Plus Medical Encyclopedia, https://medlineplus.gov/ency/article/000265.htm (referenced in January 5, 2021; last visited April 7, 2021). The Board has considered whether additional remand would be warranted to clarify the relationship between the Veteran’s service connected cardiovascular disease and depression and his obesity. However, the Board notes the case has been remained multiple times in the past, and given the nature and severity of his service connected disabilities, the Board finds it highly unlikely that he would be able to exercise at a level necessary to preclude obesity. Further, his impairment in judgment will likely lead him to make poor dietary choices. Remanding for additional development would only result in unnecessary delay in the adjudication of his claims. The Board notes that the Veteran has also alleged separate legal theories during the pendency of the appeal including that the Veteran’s disability should be characterized as another disability such as asthma or chronic obstructive pulmonary disorder (COPD). As this is considered a full grant of the Veteran’s requested relief, all other theories of service connection are moot, and the Board shall not address these matters any further. Here, the weight of the probative evidence of record demonstrates that obesity served as a linking disability between the Veteran’s previously service-connected cardiac disability and depression and the Veteran’s GERD and sleep apnea. The evidence, therefore, 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 and GERD 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.