Citation Nr: 21029464 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 08-16 955 DATE: May 13, 2021 ORDER Entitlement to service connection for a respiratory disability, to include sleep apnea, asbestosis, and neoplasms of the respiratory system, to include as secondary to service-connected posttraumatic stress disorder with major depressive disorder, is denied. FINDINGS OF FACT 1. The Veteran's respiratory disability did not manifest in service and is not attributable to service. 2. The Veteran's respiratory disability is not secondary to the service-connected PTSD through the intermediate step of obesity. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include sleep apnea, asbestosis, and neoplasms of the respiratory system, to include as secondary to service-connected posttraumatic stress disorder with major depressive disorder, recurrent, claimed as acquired psychiatric disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran then testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2017. A transcript of the hearing is of record. The Board subsequently remanded this matter in April 2018 and October 2019. The Board finds there has been substantial compliance with its October 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Entitlement to service connection for a respiratory disability, to include sleep apnea, asbestosis, and neoplasms of the respiratory system, to include as secondary to service-connected posttraumatic stress disorder with major depressive disorder, recurrent, claimed as acquired psychiatric disorder (PTSD) The Veteran asserts that his respiratory disability was caused by exposure to asbestos in service. Alternatively, the Veteran asserts that his respiratory disability was caused by his obesity which he claims, in turn, was caused by his service-connected PTSD. Thus, in effect, he alleges the obesity is an "intermediate step" to establishing his entitlement to secondary service connection for his respiratory disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Initially, Board notes that the service personnel records show the Veteran had a military occupation specialty of boatswain's mate. He described duties involving work with exposure to significant dust and debris in the ammunition/cargo holds of the USS Diamond Head (AE-19) without personal protective equipment, as well as exposure to fumes from pain, solvents, and other chemicals when working in the paint locker. The Veteran has further asserted that his duties in the cargo hold exposed him to asbestos. Based on the Veteran's MOS, the Board concedes that the Veteran was exposed to asbestos during service. Direct Service Connection The first point worth noting is that mental disorders, including PTSD, often involve symptoms that include sleep impairment hence, the reason this is one of the considerations when rating a service-connected mental disorder. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Thus, the mere fact that the Veteran may have had difficulty sleeping during his time in service is not tantamount to concluding he as likely as not had sleep apnea during his service or even early (i.e., prodromal) manifestations of this condition that, as mentioned, was not until later diagnosed in 2013. Service treatment records are silent for complaints, treatment, or diagnosis of a respiratory disability. In a March 2013 VA treatment record, the Veteran said he was concerned that the had asbestosis with shortness of breath for years. He said he worked in the shipyards in the Navy. The VA physician assessed the Veteran with dyspnea, chronic, which the Veteran felt was asbestosis, and the physician found that the Veteran's weight was a large part of his symptoms. In an April 2013 statement, the Veteran reported that ever since getting out of the service, he had problems getting "a good deep breath of air," especially when sleeping. A May 2013 pulmonary function test demonstrated moderate restrictive ventilatory effect, mild pulmonary restriction by measurement of lung volumes, and mildly reduced diffusing capacity. At the February 2017 Board hearing, the Veteran testified that he was exposed to asbestos while serving aboard the USS Diamond Head. He described how his duties, including painting, scraping, and anything else a boatswain's mate would do exposed him to asbestos. He said he did not use any protective gear such as ventilators for breathing. The Veteran stated that he had never smoked. In a February 2017 treatment record, the treating physician diagnosed the Veteran with dyspnea. The physician did not review service treatment or post-service treatment records. The physician opined that it was "at least as likely as not that the Veteran's dyspnea was a result of" followed by CT of the chest did not show asbestosis at this time. The physician referenced to the May 2013 pulmonary function test, which showed "mod restrictive defect, mild reduction in diffusion capacity." In a February 2017 VA treatment record, a CT study was done for the Veteran's chest based on complaints of shortness of breath and exposure to asbestos. The examining physician concluded that there was no evidence of asbestosis and no etiology for the Veteran's shortness of breath was identified. The physician noted cholelithiasis without evidence for cholecystitis. In a November 2018 VA examination, the examiner diagnosed the Veteran with restrictive lung disease secondary to obesity. The examiner noted diagnosis of obstructive sleep apnea in August 2013. The examiner stated that the Veteran did not have COPD or asbestosis. The examiner opined that the Veteran's respiratory disability was less likely than not related to service. The examiner said that the Veteran was diagnosed with sleep apnea in 2013, over 40 years after military service. Review of current medical literature failed to reveal any evidence that military service or exposure to asbestos, chemicals, paints, solvents, or any other airborne pollution caused or resulted in sleep apnea. The examiner said that the greatest risk factor for sleep apnea was obesity and the Veteran's BMI at the time of diagnosis was 37, which was severely obese. Additional, post-service treatment records are silent for any positive nexus between the Veteran's respiratory disability and service. Overall, the Board finds that the Veteran's respiratory disability is not related to service on a direct basis. Initially, the Board acknowledges the February 2017 physician's positive nexus opinion. However, the Board finds this opinion is not probative as the physician did not make a full statement on whether the Veteran's respiratory disability was related to service. Additionally, there was no rationale provided, and the physician did not review the service treatment records or post-treatment records. Although the physician referred to a May 2013 treatment record, the Board cannot assume the physician reviewed all records when he specifically marked that records were not reviewed. In contrast, the November 2018 VA examiner reviewed the Veteran's records and examined the Veteran in making her opinion. The Board finds this opinion to be highly probative in finding that the Veteran's respiratory disability was due to his obesity. The examiner's opinion is probative because it was based on an accurate medical history, including provided by the Veteran himself, and contains the required discussion of the underlying reasoning or rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, since this is not type of situation where the Veteran is competent to say when he had a respiratory disability, as opposed to symptoms, or to associate his symptoms with an certain underlying diagnosis, the VA examiner's opinion is more probative on this issue of whether the respiratory disability was directly incurred in service. See Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board finds that service connection for the respiratory disability on a direct basis is not warranted. Obesity as an "Intermediate Step" to Establishing Secondary Service Connection VA has determined that obesity is not a ratable disability for service connection or secondary service connection compensation purposes. However, obesity may act as an "intermediate step" between a service-connected disability and a current disability for which secondary service connection may be established. See VAOPGCPREC 1-2017 (Jan. 6, 2017). It was noted that, under 38 C.F.R. § 3.310 (a), a disability that is proximately due to or the result of a service-connected disease or injury is service connected and that "proximate cause" had been defined by Black's Law Dictionary, 213 (7th ed. 1999), as a "cause that directly produces an event and without which the event would not have occurred." As such, VA must resolve: (1) whether a service-connected disability caused a Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. More recently, in Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court again addressed the holding of VAOPGCPREC 1-2017 (Jan. 6, 2017) that obesity can constitute an "intermediate step" in showing secondary service connection, i.e., that service connection is warranted when a service-connected disability causes obesity that, in turn, causes another disability. GC opinions are binding on the Board but not on the Court. The Court held that, although VAOPGCPREC 1-2017 is silent as to aggravation, the Board must consider aggravation in this context, i.e., service connection is warranted when a service connected disability aggravates obesity that in turn aggravates another disability, consistent with 38 C.F.R. § 3.310 (b), which provides for service connection for any increase in severity of a nonservice-connected disease or injury that is due to service-connected disease or injury. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board remanded this claim in October 2019 to have the Veteran reexamined for additional medical comment concerning the origins of his respiratory disability (and, more specifically, whether it alternatively is secondary to his service-connected PTSD). In a December 2019 VA opinion, the examiner opined that the Veteran's sleep apnea was less likely than not related to service. The examiner said that the Veteran weighed 164 pounds at the time of military enlistment. He weighed 162 pounds at the time of separation from service. Service treatment records note insomnia and recurring nightmares. The examiner said that the Veteran was suffering from chronic sleep impairment while in service and did not gain weight; in fact, he lost weight. In May 1978, the Veteran was noted to weigh 204 pounds. Extensive FH [family history] of CAD [coronary artery disease] was noted. In October 1978, the Veteran weighed 200 pounds. In January 1997, the Veteran weighed 257 pounds and in October 2019, the Veteran weighed 223.7 pounds. The examiner stated that the Veteran had been offered a referral to the MOVE program numerous times to assist with weight loss and had refused. The Veteran refused a referral to dietitian from the pulmonologist in May 2013. The evidence also showed that he had denied problems with sleep. The examiner stated that weight gain and obesity were caused when the calories consumed was greater than the calories burned. Due to this negative opinion, the examiner did not need to answer whether obesity was a substantial factor in causing the Veteran's respiratory disability, and whether the Veteran's respiratory disability would have not occurred but for the obesity caused by the service-connected PTSD. Additional post-service treatment records are silent for any nexus between the Veteran's respiratory disability, obesity, and PTSD. The Board finds the December 2019 VA examiner's opinion to be highly probative as it is based on a review of the record and provides a sound rationale. (Continued on the next page) As such, while it is more likely than not the Veteran's obesity has caused or certainly been a major contributing factor in his respiratory disability, the evidence of record does not support the notion that his obesity was proximately caused or aggravated by any service-connected disability and, further, his respiratory disability did not start in service. Accordingly, the Veteran's claim of entitlement to service connection for a respiratory disability is denied as the preponderance of the evidence of record is against finding that it incepted during his service or is otherwise related or attributable to his service, including that his obesity is proximately due to or aggravated by his PTSD. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saudiee Brown 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.