Citation Nr: 18142829
Decision Date: 10/16/18	Archive Date: 10/16/18

DOCKET NO. 16-21 554
DATE:	October 16, 2018
ORDER
Entitlement to service connection for sleep apnea is denied. 
FINDING OF FACT
The Veteran’s service-connected back disorder, including service-connected bilateral lower extremity radiculopathy, did not cause him to become obese.
CONCLUSION OF LAW
The criteria for service connection for sleep apnea, as secondary to a service-connected back disorder, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from April 2003 to October 2005.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).
VA has rated the Veteran as 100 percent disabled since May 22, 2015.
Issue: Entitlement to service connection for sleep apnea
OGC Opinion 1-2017
VA’s Office of General Counsel (OGC) issued Opinion 1-2017 in January 2017.  The legal opinion recognizes that obesity may act as an “intermediate step” between a service-connected disability and a current disability.  As such, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a). 
Opinion 1-2017 articulates a three-prong test.  To determine whether obesity is an intermediate step between a SC disability and the development of a current disability that may be SC on a secondary basis, the following criteria must all be satisfied:
a)	The SC disability must have caused the Veteran to become obese;
b)	The obesity as a result of the SC disability must have been a substantial factor in causing the potential secondary disability; and
c)	The potential secondary disability would not have occurred but for the obesity caused by the SC disability.
To understand the three-prong test OGC adopted, one must read Paragraphs 14 and 15 of Opinion 1-2017 closely.  Paragraph 14 cites Shyface v. Sec’y of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir 1999), which in turn cited the Restatement of Torts.  Specifically, Shyface explains the relationship between the “substantial factor” test and “but for” test in prongs (b) and (c) above.  
Relevant here is that Shyface explains that the “but for” test is “necessary, but not sufficient, to establish causation.”  Indeed, the “action must also be a substantial factor.”  
In practice, the “substantial factor” test logically subsumes the “but for” test.”  An Internet search will illustrate many torts discussions on this matter.  
Additionally, Shyface shows it is not necessary to be either the “sole” cause or even the “predominant cause” to satisfy the “substantial factor” test.  Moreover, a “substantial factor” is one which is not defined quantitatively.   This is therefore the framework under which the Veteran’s claims for a right knee disorder, DM, and sleep apnea will be evaluated.
Obesity
VA has service connected the Veteran's back disorder, rating it as 40 percent disabling since December 2011.  VA has also service connected the Veteran's bilateral lower extremity radiculopathy, secondary to his back disorder, rating it as 10 percent disabling.  The Veteran contends that these disorders have been debilitating.  He argues that they have severely curtailed his physical activity, causing him to gain weight and preventing him from maintaining the "peak physical fitness" for which he was recognized in service.
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VA examined the Veteran in May 2013 for compensation purposes.  The examiner opined that "gaining some weight is possible due to a lack of exercise but a 150 lb. weight gain is beyond reasonable to simply incriminate lack of exercise."  VA, believing this opinion was inadequate because OGC subsequently issued Opinion 1-2017 in January 2017, sought a supplemental opinion in April 2017.  This physician refused to opine, stating that he would "have to resort to mere speculation" on the relationship between the Veteran's disorders and his obesity.  This is the lone nexus statement regarding obesity.  Accordingly, the evidence does not show that the Veteran's service-connected back disorder, including service-connected bilateral lower extremity radiculopathy, caused him to become obese.
Because the Veteran has failed the first prong of the three-prong test articulated above, the undersigned must deny his claim.
 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Sopko, Counsel