Citation Nr: 18144490 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 18-33 349 DATE: October 25, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected lumbar spine strain and radiculopathy of the left lower extremity is granted. REMANDED Entitlement to service connection for insomnia, to include as secondary to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran's obesity developed as a result of his service-connected lumbar spine strain and radiculopathy of the left lower extremity. 2. The Veteran's OSA resulted from his obesity. CONCLUSION OF LAW The criteria for service connection for OSA, to include as secondary to service-connected lumbar spine strain and radiculopathy of the left lower extremity, have been met. 38 U.S.C. § 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.304, 3.310 (2017); VAOPGCPREC 1-2017. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1985 to March 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected lumbar spine strain and radiculopathy of the left lower extremity The Veteran contends that his current diagnosed sleep apnea is caused by obesity resulting from his service-connected lumbar spine strain and radiculopathy of the left lower extremity. In January 2017, VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a "disease" for the purposes of service connection under U.S.C. § 1110; and, whether obesity may be considered a disability for purposes of secondary service connection, whether it may be treated as an in-service "event" from which a service-connected disability may result, and whether it may be an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. VAOPGCPREC 1-2017 recognizes that obesity may act as an "intermediate step" 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). Under 38 C.F.R. § 3.310(a), disability which is proximately due to or the result of a service-connected disease or injury is service connected. "Proximate cause" is defined as a "cause that directly produces an event and without which the event would not have occurred." VAOPGCPREC 6-2003 (quoting Black's Law Dictionary 213 (7th ed. 1999)). When there are potentially multiple causes of harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. Shyface v. Sec'y of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999) (citing RESTATEMENT (SECOND) OF TORTS §§ 430 cmt. d. and 433 cmt. d. (1965)). A determination of proximate cause is basically one of fact for determination by adjudication personnel. VAOPGCPREC 6-2003 and 19-1997. With regard to this determination, adjudicators would have to resolve the following issues: (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 claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the claimed disability may be service connected on a secondary basis. The Veteran was afforded VA examinations in April 2017, January 2018, and June 2018. With regards to the April 2017 examination, it will not be discussed in detail, as the examination does not address the causal relationship between the Veteran’s obesity and OSA; which is the basis of the grant herein. In a January 2018 private medical opinion, the examiner opined that it is more likely than not that the Veteran’s OSA is secondary, related to, and/or aggravated by his service-connected thoracolumbar spine strain and radiculopathy of the left lower extremity with an associated sleep disturbance, decreased activity, weight gain, and obesity. The examiner noted that the Veteran was 120 pounds at entrance to service, 190 pounds at separation, and currently weighed 205 pounds, with a BMI of 32; meeting the national standard set forth by the Center for Disease Control for obesity. In her rationale, the examiner reasoned that due to the constant pain related to his service connected lower back and left leg disabilities, the Veteran is unable to be as active as he was before his injuries, and subsequently began to progressively gain weight. The examiner further reasoned that weight gain has been established as secondary sequelae of a more sedentary lifestyle related to joint pain, knee stiffness, and muscle weakness. The examiner went on to cite medical literature and multiple studies indicating that obesity is a major risk factor associated with OSA. Finally, the examiner cited several pieces of medical literature to support her opinion that the Veteran’s weight gain was caused by his service-connected disabilities, and his obesity in turn caused or worsened his OSA. See VA Examination, dated January 11, 2018. The Veteran was also afforded a VA examination in June 2018. The examiner opined that the Veteran’s OSA was as likely as not caused by his obesity. However, the examiner also opined that his obesity was less likely than not caused by his service-connected lumbar spine and hypothyroidism. The examiner reasoned that obesity is multifactorial, and not caused by one condition alone. The examiner noted that the Veteran’s back problems are not limiting of mild exercise, and that lack of exercise alone does not cause obesity. Additionally, the examiner opined that the Veterans hypothyroidism did not solely cause his obesity, indicating instead that his age and lifestyle played a major role in his sharp weight increase. See C&P Exam, dated June 6, 2018. Here, the Board notes that both examiners opined that the Veteran’s obesity either caused or aggravated his OSA. The Board also notes that the opinions differ in determining the causal relationship between the Veteran’s service-connected disabilities and resultant obesity. However, the Board affords more probative value to the January 2018 examination, as the opinion not only relies on the examiner’s expertise, but also couples this expertise with several pieces of medical literature to support the examiner’s opinion that the Veteran’s obesity is caused by his service-connected thoracolumbar spine strain and radiculopathy of the left lower extremity. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board finds that the preponderance of the evidence weighs in favor of the finding that the Veteran's service-connected thoracolumbar spine strain and radiculopathy of the left lower extremity caused his obesity, which gave rise to his OSA. Consequently, service connection for OSA, as secondary to thoracolumbar spine strain and radiculopathy of the left lower extremity, is warranted. REMAND Entitlement to service connection for insomnia, to include as secondary to service-connected disabilities is remanded. The Veteran also contends that he suffers from insomnia due to his active service, or alternatively, that his insomnia is caused or aggravated by his service-connected disabilities. The Veteran’s post-service treatment records contain no indication that the Veteran has a current diagnosis of insomnia. However, a thorough review of the Veteran’s service treatment records shows that the Veteran complained of fatigue on multiple occasions. Additionally, the Veteran also complained of trouble falling asleep in June 1994 during service. The latter treatment record contains a notation which reads “fatigue” and “insomnia”; however, it is unclear whether the notation is a diagnosis, or simply a description of the Veteran’s complaint at the time of treatment. See Medical Treatment Record – Government Facility, submitted February 17, 2017. In a January 2018 medical opinion, the examiner noted that the Veteran suffered from insomnia and frequent awakenings related to pain stemming from his service connected thoracolumbar spine strain and radiculopathy of the left lower extremity. See VA Examination, dated January 11, 2018. Here, it is unclear whether the Veteran has a primary diagnosis of insomnia, and if so, whether it is related to his complaints in-service, or alternatively, secondary to his service-connected disabilities. To date, the Veteran has not been afforded a VA examination in relation to his current claimed insomnia. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology of his current claimed insomnia. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s insomnia. Access to Virtual records and a copy of this REMAND must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide the following opinions: (a.) Confirm if the Veteran has any diagnosable disability to attribute his claimed “insomnia”. a. If so, is it at least as likely as not (50% or greater probability) that this disability is related to or the result of the Veteran's service? Attention is invited to the Veteran’s June 1994 complaint of trouble falling asleep during service and various complaints of fatigue. b. If so, is it as least as likely as not (50% or greater probability) that that this disability is caused or aggravated by his service-connected disabilities, to include bot not limited to his service-connected thoracolumbar spine strain and radiculopathy of the left lower extremity. (Continued on the next page)   Attention is invited to the January 2018 medical opinion indicating that the Veteran suffers from insomnia, related to pain from his service-connected thoracolumbar spine strain and radiculopathy of the left lower extremity. Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel