Citation Nr: 21032311 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-16 634 DATE: May 26, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is granted. Service connection for a heart condition is granted. Service connection for a foot condition is granted. Service connection for peripheral neuropathy is granted. Service connection for sleep apnea, including as due to tinnitus, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his COPD, heart condition, foot condition, and peripheral neuropathy are related to his active duty service. 2. Resolving reasonable doubt in favor of the Veteran, his sleep apnea is related to his active duty service, to include his service connected tinnitus. CONCLUSION OF LAW 1. The criteria for service connection for COPD, heart condition, foot condition, peripheral neuropathy, and sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1971 to October 1971 and from February 1991 to July 1991. The Veteran and his wife testified before the undersigned Veterans Law Judge at a hearing in March 2021; a copy of the transcript is of record. Service Connection Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. COPD Heart Condition Foot Condition Peripheral Neuropathy The Veteran's private medical records show that he has been diagnosed with COPD, a heart condition noted as coronary artery disease, pes planus, plantar fasciitis, and neuropathy. See July 2020 private medical records and January 2021 private medical opinion. The Veteran has asserted that his COPD and heart conditions was caused by his exposure to fumes while on active duty and involved in active duty training (ACDUTRA). See March 2021 hearing testimony. He has also asserted that his foot conditions and neuropathy were caused by his military service, to include the outdoor working conditions of his military occupational specialty (MOS). The record shows that the Veteran was a food service worker and was continuously working in a mess tent which contained M2 gas burners for the preparation of food. See March 2021 hearing testimony and buddy statements submitted in 2015. Additionally, the lay testimony and buddy statements of evidence show that the Veteran sustained numerous injuries to his feet while working in the outdoor mess tents as part of his MOS. After review of the record, the Board finds it both credible and probable that the Veteran was exposed to gas fumes while in the course of his MOS as a food service worker. The Veteran submitted statements from supervisory personnel and a co-worker that attested to the fumes present in the mess tent in which the Veteran worked. The conditions and exposure to fumes are not contradicted by any evidence in the Veteran's file and are conditions likely to be found in the course of the Veteran's service. Both the Veteran and his wife (who was married to the Veteran during the course of his service) testified about the exposure to the fumes in the mess tent and the physical impact it had on the Veteran. See March 2021 hearing testimony and statement in support of claim. Thus, the Board finds that the Veteran was exposed to gas fumes during the course of his active duty service. The Veteran submitted a January 2021 medical record from his treating physician which stated that after review of the Veteran's file, including information about the Veteran's exposure to gas fumes while in-service, it was at least as likely as not that the Veteran's COPD was caused by his exposure to fumes while in-service. The Veteran submitted an opinion from his treating physician that his heart condition was at least as likely as not related to his active duty service. See March 2021 private medical opinion. A January 2021 opinion from the Veteran's private podiatrist noted that the Veteran had been diagnosed with pes planus, plantar fasciitis, and neuropathy and had been under her care since 2017. The physician stated that after review of the record, including the lay statements and hearing testimony, it was her opinion that the Veteran's foot conditions, and neuropathy were a direct result of his time in service. The Board is aware of a June 2018 VA examination which found the Veteran's COPD was more likely due to his smoking. The Board finds that the VA opinion did not specifically address the fumes to which the Veteran was exposed. As such, the Board affords more probative weight to the January 2021 opinion of the Veteran's treating physician. Also, even considering the negative 2018 opinion, the Board finds that the evidence regarding the etiology of the Veteran's COPD is in equipoise. There are no other medical opinions regarding the Veteran's heart condition, feet, and neuropathy or evidence to the contrary of the opinions regarding the etiology of these conditions. The Board notes that seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As such service connection for COPD, a heart condition, a foot condition, and peripheral neuropathy is warranted. Sleep Apnea The Veteran has stated that his sleep apnea is due to both his service and his service connected tinnitus. See March 2021 hearing testimony. The Veteran's wife stated that her husband's sleep issues, including snoring, began while the Veteran's was on active duty. See March 2021 statement. The Veteran's treating physician submitted a December 2020 opinion stating that the Veteran's tinnitus caused sleep disturbance which could lead to the development of sleep apnea. The treating physician also provided an opinion in the January 2021 report which related the Veteran's sleep apnea to his exposure to gas fumes while in-service. There is no contrary opinion or other medical evidence which addresses the etiology of the Veteran's sleep apnea. Again, the Board notes that seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano, 17 Vet. App. 305. As such, based on the credible reports of the Veteran and his wife regarding his sleep apnea symptoms, and the private medical opinion regarding the etiology of the Veteran's sleep apnea, the Board finds that service connection for sleep apnea, including as due to tinnitus, is warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.