Citation Nr: 18152746 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-48 099 DATE: November 26, 2018 ORDER Entitlement to service connection for sleep apnea, to include as secondary to nonservice-connected obesity, is denied. FINDING OF FACT Sleep apnea was not incurred during service and is not proximately due to or aggravated by a service-connected disease or injury. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, to include as secondary to nonservice-connected obesity have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is a Vietnam Era Veteran with active service in the United States Air Force as a medical services specialist from September 1973 to September 1977. The Veteran also had active service in the United States Navy as a commissioned officer in the Nurse Corps from April 1982 to September 1986 with additional service in the Naval Reserve. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claim for entitlement to service connection for sleep apnea and a left knee condition (claimed as left knee total replacement). During the pendency of this appeal, in a June 2016 rating decision, the RO granted service connection for the left knee condition (claimed as left knee total replacement) with an evaluation of 30 percent effective April 23, 2014. Since the most recent supplemental statement of the case (SSOC), issued in November 2016, the agency of original jurisdiction (AOJ) has associated a number of records with the Veteran’s claims file. These records are not pertinent to the claims for a service connection for a for sleep apnea, to include as secondary to nonservice-connected obesity. Thus, the Board may proceed to adjudicate these claims without a waiver of review by the AOJ. See 38 C.F.R. § 20.1304 (2017). Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Secondary Service Connection A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service connected disease or injury, 38 C.F.R. § 3.310(a) or (2) aggravated by an already service connected disease or injury, 38 C.F.R. § 3.310(b) (2017). Entitlement to service connection for sleep apnea to include, as secondary to nonservice-connected obesity Although the Veteran has a current diagnosis of sleep apnea, in a September 2015 sleep study report, the doctor recommended a weight loss program for the Veteran “since weight reduction might eliminate sleep apnea.” At that time, the Veteran was 71 inches tall and weighed 285 pounds. The evidence of record does not show evidence of treatment for sleep apnea during the Veteran’s active military service. As the weight of the evidence shows, sleep apnea did not manifest until many years after service and as there is no competent evidence of proximate causation by any injury or disease in service, the criteria for direct service connection for sleep apnea have not been met. Obesity may be 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). VAOPGCPREC 1-2017. In this case, the Veteran has not asserted that obesity is an “intermediate step” between a service-connected disability and a current disability, but rather obesity is the cause of his sleep apnea. Therefore, VAOPGCPREC 1-2017 is not applicable in this instance. In a May 2015 lay statement provided by the Veteran, the Veteran stated, “my sleep apnea is brought about by my obesity.” The Veteran’s military service records reflect that he was assigned to the “command’s weight reduction program” while on active duty. He was involuntarily released from active duty in 1986 for failure to meet the service weight control standards. In a 1990 Reserve physical examination, the examiner noted that the Veteran continued to be on a weight control program. Obesity is not recognized as a chronic disease. See 38 C.F.R. § 3.309(a) (2017). Since the Veteran’s obesity is a nonservice-connected condition, by operation of law, secondary service connection for sleep apnea must be denied. Further, in August 2016, a VA physician noted a review of the Veteran’s claims file and considered whether the Veteran’s service-connected left knee disability caused obesity as an intermediate step to obstructive sleep apnea. The physician cited medical literature and found that in this Veteran’s case many other non-service-connected factors were responsible for his obesity and not inactivity solely because of a left knee. Although the Veteran, as a critical care nurse, has some medical training, the Board places greater weight on the physician’s record review and comprehensive opinion that the “intermediate step” theory is not applicable in this case. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel