Citation Nr: 21032701 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-42 178 DATE: May 27, 2021 ORDER Service connection for a left knee disability is granted. REMANDED Service connection for a respiratory disability to include chronic obstructive pulmonary disorder (COPD) is remanded. FINDING OF FACT The Veteran's previously service-connected disabilities caused the Veteran to become obese, and obesity was a substantial factor in the Veteran developing a left knee disability; and, but for the Veteran's obesity, the Veteran would not have developed a left knee disability. CONCLUSION OF LAW The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304; 3.307; 3.309; 3.310; VAOPGCPREC 1-2017 (January 6, 2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from February 1957 to February 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2013 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 April 2019, and a transcript of the hearing is of record. The Board notes that these matters were previously before the Board, and, in September 2019 and July 2020, the Board remanded this matter for further development. The Board notes that in July 2020 the Board also remanded claims for service connection for hypertension and sleep development. The RO granted service connection for both of these disabilities in March 2021. This is considered a full grant of the Veteran's requested prayer of relief, and, therefore, the Board shall not consider these issues any further. Service connection for a left knee disability is granted. At issue is whether the Veteran is entitled to service connection for a left knee disability. The record does not dispute that the Veteran has a current diagnosis of a left knee disability. The Veteran testified at a personal hearing before the Board that his left knee disability was due to an altered gait. See Transcript. The Board finds the Veteran's reports credible and affords them great weight. Gabrielson v. Brown, 7 Vet. App. 36 (1994). A February 2020 VA examination linked the Veteran's left knee disability to the Veteran's obesity. A March 2021 VA medical opinion indicates that the Veteran's obesity was caused by the Veteran's previously service-connected disabilities, and that the Veteran's obesity was a substantial factor in the Veteran's left knee disability; because obesity causes unnatural movements during physical activity potentially leading to ligament injuries. The Board finds that these conclusions are supported by a reasoned medical explanation, and the Board affords them much weight. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Taken together, the weight of the evidence indicates that the Veteran's obesity served as a linking condition between the Veteran's previously service-connected disabilities and the Veteran's left knee disability, and, as such, service connection for a left knee disability is granted. VAOPGCPREC 1-2017 (January 6, 2017). Admittedly, the Veteran attributed his altered gait as being directly due to his previously service-connected right knee disability (as opposed to being caused by obesity due to any combination of his previously service-connected disabilities). See Transcript. As a layman however, the Veteran's testimony is primarily persuasive regarding his reported medical history and symptomology rather than as a source of medical opinions. Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). Thus, that the Veteran reported an altered gait consistent with unnatural movements of the knee is more probative than the Veteran's speculation on the ultimate cause of the altered gait. Moreover, the Veteran's speculative medical opinions that the Veteran is not competent to give cannot be held against him in evaluating the Veteran's claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, the Board is cognizant that the March 2021 VA medical opinion indicated that the Veteran's left knee disability would still have occurred but for the Veteran's obesity, because the Veteran's left knee disability was due to overuse. Nevertheless, the Board finds this rationale perplexing given that immediately preceding this conclusion the VA examiner, in finding that obesity was a substantial factor in the development of the Veteran's left knee disability, indicated that obesity causes unnatural movements that damage the Veteran's ligaments. In essence, the examiner seems to be indicated that unnatural movements resulting in ligament damage should not be considered overuse. The Board does not find that the examiner presented the facts, data, principles, or methods sufficiently persuasive to explain such a distinction, and the Board cannot afford it much weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As discussed above however, the Board does find the rest of the medical opinion to be credible, and the Board finds that the VA examiner's finding that the Veteran's obesity caused ligament damage of the left knee sufficiently persuasive to place a reasonable factfinder in a state of equipoise (if not outright leaning towards the Veteran) regarding whether, but for the Veteran's obesity, the Veteran would have developed a left knee disability; and the tie must go to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also notes that the February 2020 VA examination which linked the Veteran's left knee disability to obesity also indicated that the Veteran's left knee disability was neither directly due to an in-service incurrence nor a proximately due to a previously service-connected disability. Additionally, a September 2013 VA examination which indicated that the Veteran's left knee disability was not directly due to an in-service incurrence. Nevertheless, these negative conclusions address different theories of service-connection other than obesity as a linking condition. Therefore, these negative conclusions are not relevant to the Board's finding that that obesity served as a linking a condition between the Veteran's previous service-connected conditions and a left knee disability. See Fed. R. Evid. 402 (irrelevant evidence is inadmissible); see also Rucker v. Brown, 10 Vet. App. 67 (1997) (holding recourse may be made to the Federal Rules of Evidence in determining the appropriateness of evidence before the Board). Finally, the Board notes that a January 2021 VA examination indicates that the Veteran's left knee disability was not caused by the Veteran's obesity, and that the Veteran's obesity was not caused by the Veteran's previously service-connected varicose veins and hypertension. The examiner, however, did not offer a rationale for these opinions. As such, this opinion constitutes a bare conclusion without a factual predicate in the record (indeed as discussed above actually contradicted by the record), and the Board cannot afford the examination any weight. Miller v. West, 11 Vet. App. 18 (2007). Here, the weight of the probative evidence of record demonstrates that the Veteran's obesity served as a linking condition between the Veteran's previously service-connected disabilities and a current left knee disability. Therefore, the evidence 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, service connection for a left knee disability is granted. REASONS FOR REMAND Service connection for a respiratory disability to include COPD is remanded. At issue is whether the Veteran is entitled to service connection for a respiratory disability to include COPD. Unfortunately, this matter must be remanded again for further development. A February 2020 VA examination indicated that there was a link between the Veteran's obesity and COPD. As a result, the Board found, in July 2020, that remand was necessary in order to provide the Veteran with an examination discussing the possibility that his obesity could have served as a linking condition between his respiratory disability and his previously service-connected disabilities in more detail in order to ensure that the evaluation of the Veteran's claim was fully formed. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided a VA examination in December 2020 indicating that the Veteran's respiratory disability to include COPD was not due to obesity. Unfortunately, this opinion is a bare conclusion without a factual predicate in the record (indeed as discussed above actually contradicted by the record) and is inadequate. See Miller. The Veteran was provided another VA examination in March 2021 which indicated that the Veteran's obesity was caused by the Veteran's previously service-connected disabilities, but that obesity was not a substantial factor in the Veteran developing COPD; because: obesity is not a risk factor in developing COPD; and COPD is due to smoking in 75 percent of cases; but that long-term exposure to other chemicals and irritants may cause COPD. Unfortunately, these responses raise more questions than it answers. A February 2020 VA examination took pains to describe in detail the examiners basis for linking COPD to obesity. The March 2021 examiners bare declaration that COPD is not cause by obesity makes no mention of this. In is unclear, whether or not the examiner is unaware of the evidence considered by the February 2020 VA examination; see Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the it must be clear that the examiner is familiar with all pertinent facts in the record); or whether the examiner is aware of this evidence, has rejected it, and inadequately phrased the opinion as a bare conclusion. See Miller. In either case, it is inadequate. Moreover, the examiner notes that up to 25 percent of individuals with COPD have no history of smoking without offering an explanation of what facts, data, principles, and methods would be present or expected when COPD was not due to smoking, and, thus, it is inadequate. See Nieves-Rodriguez. The Board does note that the Veteran admits to a brief history of smoking during his period of service before quitting in his early 20s. Nevertheless, the examiner indicates that exposure to other chemicals and irritants can also cause COPD. The Veteran record contains multiple reports by the Veteran that he was exposed to a variety of chemicals and irritants during service. The examiner fails to explain what facts, data, principles, and methods are relied upon to find that the Veteran's brief history of smoking in his 20s is a better explanation of the Veteran's COPD that exposure to chemicals and irritants throughout his entire naval career, and, thus, the explanation nis inadequate. Id. As previously noted, the remanded this matter in July 2020 for a VA examination that was sufficiently detailed to ensure that the evaluation of the Veteran's claim was fully formed. See Barr. As discussed above, the Veteran was provided a VA examination and a VA medical opinion in December 2020 and March 2021 respectively, but that neither was sufficiently detailed in order to make a fully formed evaluation of the Veteran's claim. Therefore, the Board must remand this matter again for another VA examination addressing these concerns in order to ensure substantial compliance with the Board's previous remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the examiner should discuss the medical feasibility, if any, of the possibility that tobacco use served as a linking condition between a previously service-connected disability and a current respiratory disability to include COPD in order to ensure that VA's evaluation of the Veteran's claim is fully formed. See VAOPGCPREC 6-2003 (October 28, 2003); see also Barr. The matters are REMANDED for the following action: Arrange to provide the Veteran with a VA examination (or if necessary a phone interview and a VA medical opinion based on the evidence of record) in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and the Veteran's claimed respiratory disability to include COPD? Why or why not? (b.) Document the Veteran's reported history of smoking to include: how many years the Veteran smoked; which years the Veteran smoked; and how many packs per day the Veteran smoked. (c.) Document the Veteran's reported history of exposure to chemicals and lung irritants (as well as any exposure to chemicals or lung irritants documented in the Veteran's claims file) including: which chemicals or lung irritants; over what periods of time; and to the extent possible estimate the level of exposure to any reported or documented chemicals or lung irritants. (d.) Is it at least as likely as not (50 percent or more) that the Veteran's claimed respiratory disability to include COPD is proximately due to or aggravated by any of the Veteran's previously service-connected disabilities (to include the Veteran's sleep apnea and hypertension). (e.) What is the medical significance, if any, of the February 2020 VA examination which indicated that sleep apnea and cardiovascular issues are known contributing factors to or comorbid conditions of COPD? Why? (f.) Is it at least as likely as not (50 percent or more) that obesity was a substantial factor in causing the Veteran's claimed respiratory disability to include COPD? Why or why not? (g.) Is it at least as likely as not (50 percent or more) that the Veteran's claimed respiratory disability to include COPD would not have occurred but for the Veteran's obesity? Why or why not? (h.) What is the medical significance, if any, of the February 2020 VA examination which indicated that obesity was a known contributing factor to or comorbid condition of COPD? Why? (i.) Is it at least as likely as not (50 percent or more) that any of the Veteran's previously service-connected disabilities caused the Veteran to smoke after a period of service? Why or why not? (j.) Is it at least as likely as not (50 percent or more) that smoking was a substantial factor in the Veteran developing a respiratory disability to include COPD? Why or why not? (k.) Is it at least as likely as not (50 percent or more) that but for the Veteran's smoking the Veteran would not have developed a respiratory disorder to include COPD? (l.) What caused the Veteran's claimed respiratory disability to include COPD? Smoking? Irritants? Obesity? A previously service-connected disability such as sleep apnea or hypertension? Some combination thereof? Some other cause(s) entirely? Please explain why one potential cause(s) is/are more probable than the other potential causes or any combination thereof. (m.) After reviewing the March 2021 VA examination which indicated that up to 25 percent of people diagnosed with COPD do not have a history of smoking, please explain what objective facts and data in the medical record (other than a reported history of smoking) would be present to explain why a specific individual's COPD was caused by smoking? Please indicate what if any of these objective facts and data are contained in the Veteran's records. (n.) What objective facts and data in the medical record would be present to explain why a specific individual's COPD was caused by chemicals or lung irritants? Please indicate what if any of the objective facts and data are contained in the Veteran's records. (o.) What objective facts and data in the medical record would be present to explain why a specific individual's COPD was caused by obesity? Please indicate what if any of the objective facts and data are contained in the Veteran's records. (p.) What objective facts and data in the medical record would be present to explain why a specific individual's COPD was caused by sleep apnea or hypertension? Please indicate what if any of the objective facts and data are contained in the Veteran's records. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.