Citation Nr: 22019991 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 09-10 220 DATE: April 4, 2022 ORDER Service connection for restrictive lung disease, as secondary to a service-connected disability, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, obesity served as an intermediate step between the currently diagnosed restrictive lung disease and his service-connected peripheral neuropathy with paresthesias of the bilateral lower extremities and degenerative disc disease of the lumbosacral spine. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection of restrictive lung disease have been met. 38 U.S.C. §§ 1110, 1131 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1980 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania. This case has a long and complicated procedural history. The Veteran's claim was remanded by the Board in May 2012 and August 2015 for VA examinations and opinions. In August 2017, the Board denied service connection. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), which, in an April 2019 Memorandum Decision, found that the Board erred in failing to fully address whether the Veteran's lung disability was aggravated by his service-connected rhinosinusitis. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Subsequent to the Court's remand, the Board remanded the Veteran's claim in November 2019, May 2020, and October 2021 for further development and to ensure compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). On review of the January 2022 addendum opinions obtained during the most recent remand, the Board finds there has not been substantial compliance with its October 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall, supra. Nevertheless, the Veteran is not prejudiced by these deficiencies as the Board grants the claim herein. As deficiencies in earlier VA examinations and opinions have been detailed in previous Board remands, the findings therein need not be discussed further except as found relevant in the discussion below. Service Connection - Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only chronic diseases listed under 38 C.F.R. § 3.309(a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Analysis The Veteran and his representative have variously asserted that his lung disability was caused by exposure to asbestos in service or by obesity resulting from other service-connected disabilities. VA General Counsel interpreted that obesity may act as an "intermediate step" to establish proximate causation between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). In order to establish a service-connected disability proximately caused a current disability through obesity, the adjudicator must determine: (1) whether the service-connected disability caused the 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 current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability. If all of the above questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. The Court of Appeals for Veterans Claims recently held that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis. Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020). Initially, the Board finds that the Veteran is diagnosed with a restrictive lung disease. See, e.g., VA Medical Opinion dated January 14, 2022; VA Respiratory Conditions Examination dated January 25, 2013. Although the record reflects that the Veteran's lung diagnoses throughout the claim period have varied, restrictive lung disease is consistently reflected in VA treatment notes as well as the January 2013 VA examination and the January 2022 VA opinion. The Veteran has been awarded service connection for a number of disabilities, including, as relevant here, peripheral neuropathy with paresthesias of the bilateral lower extremities associated with Type II diabetes mellitus, and degenerative disc disease of the lumbosacral spine. Next, the Board finds that competent and probative medical evidence of record links the Veteran's service-connected peripheral neuropathy to his obesity. Specifically, a June 2020 VA examiner opined that "there is a high probability that his chronic disabilities including peripheral neuropathy and degenerative disc disease have caused his obesity due to the inability to exercise." Although the Board previously observed in its October 2021 remand that this opinion was vague, on further review, the Board finds the opinion probative, competent and persuasive medical evidence weighing in favor of the Veteran's claim. In this regard, the examiner acknowledged that the Veteran's service-connected peripheral neuropathy with paresthesias of the bilateral lower extremities and degenerative disc disease of the lumbosacral spine caused the Veteran to become obese because the service-connected disorders rendered him unable to exercise. See Nieves-Rodriguez, supra. Further, the Board finds that obesity (as a result of the service-connected disabilities) was a substantial factor in causing the current disability, restrictive lung disease. Most of the VA opinions obtained in January 2022 pursuant to the Board's October 2021 remand reflect deficiencies. Nevertheless, one of the January 2022 opinions supports the Veteran's claim: "It is at least as likely as not that the Veteran's obesity has caused his lung condition. Fat loading in the chest cavity has reduced the Veteran's lung capacity and caused his lung condition." See VA Medical Opinion addressing causation dated January 12, 2022. The Board finds the opinion probative, competent and persuasive medical evidence weighing in favor of the Veteran's claim. Specifically, the examiner acknowledged that the Veteran's obesity, previously determined to have been caused by his service-connected peripheral neuropathy with paresthesias of the bilateral lower extremities and degenerative disc disease of the lumbosacral spine, caused the Veteran's restrictive lung disease, and supported this conclusion with a reasoned medical explanation regarding fat loading in the chest cavity and resulting reduction in lung capacity, which is consistent with the record. See Nieves-Rodriguez, supra. Based on the foregoing, the Board further finds that restrictive lung disease would not have occurred but for obesity caused by the service-connected disabilities. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that obesity serves as an "intermediate step" between the service-connected peripheral neuropathy and degenerative disc disease of the lumbosacral spine, and the Veteran's currently diagnosed restrictive lung disease. Service connection is warranted under a secondary service connection theory of entitlement. 38 C.F.R. § 3.310(a). The grant of service connection as proximately due to service-connected disabilities renders moot any alternative theory of entitlement. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.