Citation Nr: 1756869 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-19 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from January to June of 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2010 by a Regional Office (RO) of the Department of Veterans Affairs. Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. In May 2016, the Board issued a decision that, inter alia, remanded the aforementioned claims for development, and in May 2017, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board requested a related advisory medical opinion from a Veterans Health Administration (VHA) medical expert (hereinafter referred to as the VHA expert), which was rendered in July 2017. Thereafter, the Board provided a copy of this opinion to the Veteran and her representative, per 38 C.F.R. § 20.903(a), and the Veteran acknowledged her receipt of the medical opinion, but declined to offer any additional argument or evidence on the matter, as reflected in a September 2017 statement. Due process having been afforded to the Veteran, the claims are now ripe for appellate review. FINDING OF FACT The Veteran's sleep apnea and hypertension are neither directly related to service nor caused or aggravated by her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea , to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection for hypertension, to include secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran contends that she developed sleep apnea and hypertension either as a direct result of her service-connected disabilities, or that her service-connected disabilities aggravated her sleep apnea and hypertension. Specifically, she asserts that her many service-connected disabilities significantly limit her mobility, and that her resulting sedentary lifestyle has contributed to her obesity, which in turn has caused or aggravated her hypertension and obstructive sleep apnea. Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (table). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a), such as hypertension, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1133, 1137; 38 C.F.R. § 3.309. Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. See 38 C.F.R. § 3.310. The longstanding policy of the Department of Veterans Affairs (VA) is that obesity, per se, is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, consistent with title 38, United States Code. Nevertheless, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis pursuant to 38 C.F.R. § 3.310. See VAOPGCPREC 1-2017. Analysis At the outset of this analysis, the Board notes that while the Veteran has reported experiencing a sleep impairment that she refers to as sleep apnea, no such official diagnosis of sleep apnea is of record. However, to the extent that the Veteran is competent to report experiencing the symptoms of sleep apnea, the Board finds that this case need not be remanded to determine whether the Veteran does indeed have such a diagnosis, as the probative evidence of record, including a medical opinion assuming the existence of such a diagnosis, fails to establish a causal relationship between the Veteran's claimed sleep apnea and service or her service-connected disabilities. Accordingly, for the purposes of the service connection analysis below, the Board will assume, arguendo, that the Veteran has sleep apnea. As to the potentially applicable avenues of establishing service connection, the Board notes that the Veteran does not contend, and the evidence does not suggest, that the Veteran developed her hypertension or sleep apnea during or soon after service. In that regard, the Veteran's service treatment records fail to reflect any elevated blood pressure readings or references to hypertension, nor do they reflect any references to sleep apnea. Rather, the evidence reflects that the Veteran developed these disabilities many years after service, as she was first diagnosed with hypertension in January 2006 and first reported a sleep impairment in August 2007, as reflected in VA treatment of record. Accordingly, a basis for establishing service connection for hypertension or sleep apnea as incurred in service or presumptively related thereto has not been presented. As to the Veteran's claimed theory of service connection, that she developed her hypertension and sleep apnea as obesity due to the sedentary lifestyle imposed by her multiple service-connected disabilities, the Board notes that the Veteran is service-connected for a major depressive disorder and disabilities affecting her legs, knees, thighs, hips, and hands. In order to explore the potential relationship between the Veteran's service-connected disabilities and her development of obesity, which led to hypertension and sleep apnea, the Board initially remanded these claims to the RO, instructing the RO to obtain a related medical opinion. However, upon review of the opinion procured pursuant to the Board's remand directives, the Board found the medical opinion to be legally insufficient, as it was inconsistent with the VA General Counsel's official guidance regarding obesity and secondary service connection (which is set forth above). Accordingly, the Board requested that a new medical opinion be rendered by a VHA subject-matter expert, namely an internist. The resulting medical opinion was rendered by such a VHA expert (a professor of a VA-affiliated university medical school), who essentially concluded that it is less likely than not (less than 50 percent probability) that the Veteran's obesity could be attributed to her service-connected disabilities (or medication for treatment thereof) because obesity has a multi-factorial etiology that includes an individual's activity level, caloric intake, genetic predisposition, and microbiome, and that one's activity level plays a relatively small role in the development of obesity. In support of this opinion, the VHA expert cited several medical studies and treatises, including a study that concluded that physical activity decreased the probability of becoming obese by only 4.3-6.5 percent. Accordingly, given the relatively small role physical activity plays in preventing obesity, the VHA expert concluded that while there is a correlation between obesity and the development of hypertension and obstructive sleep apnea, the Veteran's sedentary lifestyle imposed by her physical service-connected disabilities would not have significantly contributed to her obesity. Moreover, the VHA expert noted that while depression, and certain medications used to treat depression, can contribute to the development of obesity, given the multifactorial nature of obesity, the Veteran's obesity could not be characterized as proximately caused by her depression. The Board has expressly considered of the Veteran's assertion that her obesity is due to the sedentary lifestyle imposed by her service-connected disabilities, and that her obesity, in turn, contributed to her hypertension and sleep apnea, and the Board does not doubt the sincerity of her belief. Nevertheless, as the etiology of obesity is a complex medical matter requiring related expertise, the Veteran, as a layperson with no known or reported medical expertise, lacks the competency to establish the etiology of her obesity. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Accordingly, the Veteran's opinion regarding the etiology of her obesity cannot be afforded any probative weight, and probative, medical evidence is required to decide her claim. In that regard, the Board finds that the VHA expert's medical opinion addressing the etiology of the Veteran's obesity constitutes such probative evidence, as the opinion is unequivocally stated and is supported by the evidence of record and a detailed rationale, thereby rendering it legally sufficient to decide the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). In sum, as the more probative evidence of record establishes that the Veteran's obesity cannot be attributed to her service-connected disabilities, her claim seeking service connection for hypertension and sleep apnea as secondary to her service-connected disabilities, with obesity as an intercurrent cause, lacks merit. Accordingly, the preponderance of the evidence is against the Veteran's service connection claims; there is no reasonable doubt to resolve on the Veteran's behalf, and service connection for hypertension and sleep apnea as secondary to her service-connected disabilities is not warranted. ORDER Service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is denied. Service connection for hypertension, to include as secondary to service-connected disabilities, is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs