Citation Nr: 21027963 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-28 273 DATE: May 7, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease or bronchial asthma, is denied. Entitlement to service connection for sleep apnea, to include as secondary to a respiratory disorder and/or as secondary to a service-connected disorder, to include posttraumatic stress disorder, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's current respiratory disabilities began during service or are otherwise related to service. 2. The Veteran's obstructive sleep apnea was not caused or aggravated by her service-connected disorders, to include PTSD, or otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for obstructive sleep apnea, claimed as secondary to a respiratory disorder and/or as secondary to a service-connected disorder, to include posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1986 to February 1991. A February 1997 VA Memo states STRs considered unavailable. Requested again in 2015 and again no service treatment records were located. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2015 and March 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2018. A transcript of that hearing has been associated with the claims file. The Board remanded the claim for further development in March 2019, August 2020 and December 2020. That development has been completed, and the case has since been returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Id. 1. Entitlement to service connection for a respiratory disorder to include chronic obstructive pulmonary disease or bronchial asthma. The Veteran contends that the respiratory disorders, including chronic obstructive pulmonary disease or bronchial asthma, had its onset during military service. As noted in the most recent remand, the Board found that the AOJ should seek additional information regarding the Veteran's asbestos exposure. Review of the file reveals that the AOJ sought this information in January 2021. The record does not indicate that the Veteran responded to this information request. Without further information from the Veteran, the Board finds that asbestosis exposure is not otherwise shown in the record and without further information from the Veteran additional development is not warranted; VA has met its duty to reasonably assist. Asbestos exposure is not conceded. The question for the Board is whether the Veteran has a current respiratory disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. In a November 2015 private medical record, Dr. P.Y. opined that the Veteran has COPD and asthma, and that she had the same issues in service. The clinician opined that the Veteran had a history of respiratory issues during active duty military service which were diagnosed as bronchitis and treated with medications. The clinician opined, essentially, that the same diagnoses were present in service. The clinician did not provide additional rationale for this opinion. VA has sought multiple opinions regarding whether a respiratory disability is attributable to service. Most recently, VA obtained a March 2021 opinion. After consideration of the evidence, to include relevant testing, the examiner provided rationale for finding that the Veteran has had acute, recurrent bronchitis and that COPD was diagnosed after service. The examiner opined that these disabilities were not related to service. Cognizant of the heightened duty to consider reasonable doubt in light of the lack of service treatment records, the Board finds that the VA opinions of record, to include the most recent examination, adequately address the lay and medical evidence of record, in light of the evidence of record. Considering the evidence in total, the Board finds that VA has met its duty to reasonably assist in providing a VA examination and that this opinion evidence, due to the facts and rationale used, is more probative that the opinion by Dr. P.Y. Specifically, regarding Dr. P.Y.'s opinion, the Board has assigned greater probative weight to the February 2021 VA examiner. Dr. P.Y. stated that the Veteran has related her respiratory disabilities onset and substantially similar diagnosis of this condition which persists to the present during active duty military service should qualify same for service connection. This statement, alone, does not provide the Board with the evidence that would support granting the claim because it merely recites the Veteran's belief that her respiratory conditions are due to service. Moreover, while Dr. P.Y. suggests that the Veteran's pulmonary issues were present in-service, he does not provide any explanation or rationale about how or why he drew this conclusion. Accordingly, the submitted opinion cannot be considered probative evidence in this case. The Board notes that the February 2021 VA examiner's opinion is based on an accurate medical history and review of the Veteran's claims file. The VA examiner's report contains clear conclusions, supporting data, and a thorough analysis given the Veteran's medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a result, the Board finds that the VA examiner's opinion is entitled to significant probative weight. The Board has also considered the Veteran's own statements in light of the evidence that she has medical knowledge. The Veteran's opinions do not provide specific, medically based rationale for finding that the current diagnoses are due to service. As noted, asbestos exposure has not been conceded. As to other etiologies, the VA opinions note specific reasons for finding that the current diagnoses are unrelated to service, and the examiner provided significant details for the reasons for the opinions as to etiology and the causes of the development of these disabilities. In sum, the Board finds that the Veteran's current respiratory disabilities to include chronic obstructive pulmonary disease or bronchial asthma, did not begin during service and are not otherwise related to service or asbestos exposure. Accordingly, 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. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990). 2. Entitlement to service connection for sleep apnea, to include as secondary to a respiratory disorder and/or as secondary to a service-connected disorder, to include posttraumatic stress disorder. The Veteran contends that the current diagnosis of sleep apnea, had its onset during military service to include as secondary to a respiratory disorder and/or as secondary to a service-connected disorder, to include posttraumatic stress disorder. The question for the Board is whether the Veteran has a current sleep apnea that began during service or is at least as likely as not related to an in-service injury, event, or disease to include as secondary to a respiratory disorder and/or as secondary to a service-connected disorder, to include posttraumatic stress disorder. A November 2015 private by Dr. P.Y. opined that the sleep apnea was due to a respiratory disability. As found above, service connection is not established for a respiratory disability. This private opinion does not indicate that sleep apnea is directly related to service. As also found above, asbestos exposure in service in not conceded. VA has sought multiple opinions. The Board finds that the February 2021 VA opinion addresses all medical questions before the Board. The examiner provided detailed reasons, supported by rationale and the record, that sleep apnea was not due to service nor caused or aggravated by the service-connected PTSD. The examiner provided alternative etiology for this disability. The Veteran has not asserted that service-connected disability has led to weight changes and, therefore, the Board finds that it need not further address whether weight gain was an intermediary step between a service-connected disability and sleep apnea. Neither the lay nor medical evidence raises this contention. When the evidence of record contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 6970 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 19293 (1992)). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes that the February 2021 VA examiner's opinion is based on an accurate medical history and review of the Veteran's claims file. The VA examiner's report contains clear conclusions, supporting data, and a thorough analysis given the Veteran's medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a result, the Board finds that the VA examiner's opinion is entitled to significant probative weight. The Board has also considered the Veteran's own statements in light of the evidence that she has medical knowledge. The Veteran's opinions do not provide specific, medically based rationale for finding that sleep apnea is due to service or to service-connected disability. As noted, asbestos exposure has not been conceded. As outlined above, the VA opinions note specific reasons for finding that the current diagnoses are unrelated to service and are not secondary to service-connected PTSD, and the examiner provided significant details for the reasons for the opinions as to etiology and the causes of the development of these disabilities. In sum, the Board finds that the Veteran's current sleep apnea did not begin during service and are not otherwise related to service. Accordingly, 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. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990) Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ottley III 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.