Citation Nr: 1753656 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 10-22 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for obstructive sleep apnea, as secondary to obesity, as secondary to a service-connected bilateral knee disability. REPRESENTATION Veteran represented by: Arizona Department of Veteran's Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1960 to September 1979. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a September 2006 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This case was previously before the Board in March 2017. At that time, the Board remanded the claim for further development. In September 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's obstructive sleep apnea did not manifest in service, is not otherwise related to service, and is not caused or aggravated by his service-connected bilateral knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been satisfied. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Initially, the Board notes that VA issued a legally conforming VCAA notice letter in October 2008. Additionally, VA's duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2016). VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159 (c) (2016). Relevant service treatment and other medical records have been associated with the claims file. Also, the Veteran was afforded a VA examination in March 2017, which is fully adequate for decision-making purposes. Hence, the duties to notify and to assist have been satisfied. II. Service connection As noted in the Board's prior remand, the Veteran contends that his service-connected bilateral knee disability resulted in obesity, which, in turn, resulted in additional disability; specifically, his currently diagnosed obstructive sleep apnea. To establish direct service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 . Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA's Office of General Counsel recently issued a precedential opinion addressing questions regarding whether obesity may be considered a "disease" for the purposes of service connection under 38 U.S.C.A. §1110 and 1131. In that regard, VAOPGCPREC 1-2017 recognizes that obesity may act as an "intermediate step" between a service-connected disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). In light of this opinion and the fact that the Veteran had not been provided a VA examination regarding the etiology of his claim, the Board remanded this matter for a medical examination and opinion pursuant to the duty to assist. See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006). Pursuant to the Board's remand, the Veteran was afforded a VA examination in connection with his claim in March 2017 at which time he reported that he has had sleep apnea since 1985, when it was diagnosed at Balboa Naval Base in San Diego. However, the examiner noted there were no medical records to support the 1985 diagnosis. Rather, the Veteran was diagnosed in June 1998. Ultimately, the examiner opined that there was no medical evidence or indication of sleep apnea symptoms during service. With regard to the Veteran's bilateral knee condition, the examiner opined that it was less likely as not that the veteran's obstructive sleep apnea was caused by or aggravated by his weight gain secondary to service-connected bilateral knee condition. The Veteran asserted that he gained weight after his knee disability in 1998. However, the examiner noted that, in the Veteran's service treatment records in July 1964, the Veteran was scheduled for a weight control appointment. Further, the examiner noted that the Veteran's service treatment records from July 1979 noted that the Veteran has a "history of weight problems... and [is a] compulsive overeater [with] exogenous obesity." In July 1979, the Veteran's was 240 pounds and 74 inches tall. Thus, the examiner opined that the "it seems less likely as not that the Veteran's weight gain is related to his service-connected bilateral knee condition and that there are multiple factors that are causative for weight gain/obesity," to include the Veteran's compulsive overeating. Next, the examiner opined that there is no medical evidence relating his obesity to his bilateral knee condition and, therefore, no evidence that his obstructive sleep apnea was caused by or aggravated by obesity/bilateral knee condition. Therefore, the examiner concluded that the Veteran's obstructive sleep apnea is not directly due to service and not secondary to obesity as secondary to not being able to exercise due to his bilateral knee condition. Thus, the Board finds that service connection is not warranted here on a direct or secondary basis. Given the March 2017 examiner's opinion, including his findings that the Veteran's weight gain preceded his knee disability and that there is no medical evidence relating his obesity to his bilateral knee condition, the Board finds that the Veteran's claim also fails on secondary basis based on a theory of aggravation. Indeed, the Board finds the March 2017 VA examination to have significant probative value here. The examiner reviewed the claims file, considered the Veteran's reported history and lay statements, and supported his conclusions with clear rationale. The examiner also addressed the Veteran's contentions in this case and relied on his expertise. The Board has considered the Veteran's lay statements. The Veteran is certainly competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, although the Veteran is competent to relate that he suffers from symptomatology of sleep apnea, he is not competent to provide an opinion as to whether such symptoms are attributable to service or secondary to his bilateral knee condition, as this is a complex medical determination based upon internal medical processes. It is not capable of lay observation. The Veteran has not contended, and the evidence does not show, that he has the medical expertise to provide such opinions. See Jandreau, 492 F.3d at 1377; Layno, 6 Vet. App. at 465. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, the Veteran's claim for service connection for obstructive sleep apnea is denied. ORDER Service connection for obstructive sleep apnea is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs