Citation Nr: 18153870 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-05 627 DATE: November 28, 2018 ORDER Entitlement to a low back condition, diagnosed as degenerative arthritis of the spine, is granted. Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The Veteran’s sleep apnea and degenerative arthritis of the spine are the result of her obesity, which was in turn caused by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the spine as secondary to service-connected disabilities have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 2. The criteria for entitlement to service connection for sleep apnea as secondary to service-connected disabilities have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to October 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The matters were previously remanded by the Board in November 2017 for further development. The Board notes that the Veteran has a pending claim for increased ratings for status-post stress fracture of the bilateral legs, with knee pain, which was remanded in the November 2017 Board decision. However, this claim has not been re-certified to the Board and therefore will be discussed further herein. Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Any increase in severity of a nonservice-connected disease that is proximately due to the service-connected disease, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan 6, 2017). The VA General Counsel opinion states that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 at 1. Nonetheless, obesity may be an intermediate step between a service-connected disability and a current disability that may be service connected on a secondary basis. Id. at 2. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a 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 current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. 1. Entitlement to a low back condition, diagnosed as degenerative arthritis of the spine The Veteran contends that her degenerative arthritis of the spine is caused by obesity which was caused by her service-connected disabilities and an altered gait caused by her service-connected status-post stress fracture of the bilateral legs. The Veteran is currently service-connected for PTSD, adjustment disorder, status-post stress fracture of the bilateral legs, with knee pain, and degenerative arthritis of the bilateral hips. The medical evidence shows a diagnosis of degenerative arthritis of the spine. See March 2018 VA Examination. The March 2018 VA examiner opined that it is at least as likely as not that the Veteran’s service-connected disabilities caused the Veteran to become obese. The examiner stated that PTSD and pain in her knees and hips likely impact the Veteran’s lifestyle and activities. Sedentary lifestyle from lack of exercise increases the risk of obesity. The examiner stated that obesity is an established risk factor of chronic low back pain as it caused a strain on the lumbar spine which increases the risk of developing degenerative arthritis of the lumbar spine. The examiner opined that it is at least as likely as not that the Veteran would not have a lower back condition if she were not obese. The examiner stated that the Veteran’s low back condition is likely caused by a combination of obesity and gait abnormalities due to pain in her hips and knees. He stated that an altered gait is likely to cause damage to discs in the lumbar spine and increase the risk of developing degenerative arthritis. The examiner opined that it is at least as likely as not that the Veteran’s service-connected disabilities aggravated the Veteran’s degenerative arthritis of the spine. The preponderance of the evidence shows that the obesity caused by the Veteran’s service-connected disabilities was a substantial factor in causing degenerative arthritis of the spine. Likewise, the weight of evidence shows that degenerative arthritis of the spine would not have occurred but for the obesity caused by the service-connected disabilities. Thus, service connection for degenerative arthritis of the spine is warranted. 38 U.S.C. §§ 1131, 5107. 2. Entitlement to service connection for sleep apnea The Veteran contends that her sleep apnea is caused by obesity which was caused by her service-connected disabilities. The Veteran is currently service-connected for PTSD, adjustment disorder, status-post stress fracture of the bilateral legs, with knee pain, and degenerative arthritis of the bilateral hips. The medical evidence shows a diagnosis of obstructive sleep apnea. See March 2018 VA Examination. The March 2018 VA examiner opined that it is at least as likely as not that the Veteran’s service-connected disabilities caused the Veteran to become obese. The examiner stated that PTSD and pain in her knees and hips likely impact the Veteran’s lifestyle and activities. Sedentary lifestyle from lack of exercise increases the risk of obesity. The examiner stated that obesity is an established risk factor for obstructive sleep apnea as it increases the risk of airway obstruction while supine. The examiner opined that the Veteran is less likely to have sleep apnea if she were not obese because obesity increases the risk of sleep apnea. The preponderance of the evidence shows that the obesity caused by the Veteran’s service-connected disabilities was a substantial factor in causing obstructive sleep apnea. Likewise, the weight of evidence shows that obstructive sleep apnea would not have occurred but for the obesity caused by the service-connected disabilities. Thus, service connection for sleep apnea is warranted. 38 U.S.C. §§ 1131, 5107. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Brandt