Citation Nr: 18156939 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-05 269 DATE: December 11, 2018 ORDER Service connection for sleep apnea, to include as due to a Gulf War illness or as secondary to service-connected traumatic brain injury (TBI), is denied. FINDING OF FACT The Veteran’s sleep apnea is a known clinical diagnosis, it did not have its onset in service, it is not related to a service-connected condition, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1981 to April 1986, from December 1990 to July 1991, and from February 2003 to May 2004. Additional VA clinical records were associated with the record that have not been considered by the Agency of Original Jurisdiction (AOJ) in connection with the current appeal. However, as these records do not contain additional relevant information addressing the issue decided herein, waiver of AOJ consideration is not necessary. The Veteran has contended that his diagnosed sleep apnea was incurred in active service, is due to a Gulf War illness, or was proximately caused or aggravated by his service-connected TBI. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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 or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A Veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). Further, special service connection rules exist for Gulf War Veterans. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). Military personnel records show that the Veteran had active service in the Southwest Asia theater of operations during the Gulf War. Therefore, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service treatment records (STRs) do not contain any complaints, symptoms, diagnoses, or treatment of sleep apnea. The Veteran indicated that he did not have trouble sleeping. In June 2007 the Veteran endorsed problems sleeping, waking up at night, nightmares, and difficulty falling asleep as manifestations of his service-connected post-traumatic stress disorder. In September 2014, the Veteran reported snoring to VA clinicians and he underwent a sleep study. He was diagnosed with mild obstructive sleep apnea and prescribed a CPAP machine. In November 2016, the Veteran underwent a VA examination. He reported the onset of his sleep disorder many years previously, stating he awoke at night with nightmares and bad dreams, and he had trouble breathing at night with choking and gasping for air. His wife had observed apnea and snoring. He stated that after being on CPAP therapy for two years, he had adequate rest and his prior daytime fatigue had resolved. The examiner found other pertinent physical findings including mild bilateral tonsillar enlargement, elongated uvula, and mild crowding of the oropharynx. The examiner determined that the Veteran’s sleep apnea was less likely as not proximately due to or caused by service, to include his Southwest Asia service. He reasoned that the Veteran’s sleep apnea was proximately due to being overweight with a weight gain from 169 pounds to 224 pounds over the past sixteen years. He stated that the condition was not due to Gulf War exposure. He further noted that the Veteran first reported snoring to his psychiatrist in 2014 after a weight gain of 50 pounds since 2000. He concluded that the Veteran developed sleep apnea insidiously over time in his civilian life. The examiner also determined that sleep apnea was less likely than not proximately due to or the result of his service-connected TBI, since sleep apnea is not a brain disorder and not caused by TBI or its sequelae. He concluded that the Veteran’s sleep apnea was proximately due to being overweight with a weight gain from 169 pounds to 224 pounds over the last 16 years. An addendum VA opinion was obtained in January 2017. The clinician stated that the Veteran’s sleep apnea was not due to Gulf War exposure and did not meet any of the listed criteria for Gulf War-related illnesses. He continued that sleep apnea is due to anatomic abnormalities in the oropharynx, most frequently due to excess weight. He determined that the Veteran’s sleep apnea was due to excess weight and his small oropharynx, and not due to any exposure in Southwest Asia. The Board attaches significant probative value to the VA opinions as they are well-reasoned, detailed, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board finds that service connection for sleep apnea is not established. Because sleep apnea is a known clinical diagnosis, it does not fall within the purview of the presumptive provisions of 38 C.F.R. § 3.317 for undiagnosed illnesses in veterans who served in the Persian Gulf. Nevertheless, service connection for sleep apnea may still be granted if it is shown to be directly related to service. However, there is no evidence of sleep apnea in service and the Veteran has not provided lay statements suggesting the onset of the disorder during his periods of active service, merely noting that he noticed symptoms “many years ago.” The competent and credible medical evidence of record attributed his diagnosed sleep apnea to his weight gain following service and his small oropharynx. Further, the VA examiner found no physiological connection between sleep apnea and TBI. With the plausible anatomic etiology of the Veteran’s condition provided by the VA examiner and no competent and credible evidence to the contrary, a service-related cause of the Veteran’s sleep apnea is not supported. The Veteran’s representative asserted in a May 2017 statement that the Veteran’s obesity may be an “intermediate step” between his service-connected conditions (including residuals of TBI) and his currently diagnosed sleep apnea. 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. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and therefore may not be service connected on a direct basis. Similarly, obesity is not a “disability” for the purposes of secondary service connection under 38 C.F.R. § 3.310; and, because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service “event” for the purposes of establishing service connection. Finally, 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. In this case, the Board finds that the Veteran’s service-connected disabilities did not cause the Veteran to become obese. Following service, the Veteran began working as a truck driver, requiring long hours of sedentary activity. The claims file contained numerous notations of counseling by VA medical personnel for the Veteran to change his diet, especially to address his high blood pressure and increasing weight. He was also counseled to exercise at least three times per week. Many records indicated that he enjoyed frequent walking, alone or with his family, several times per week both for physical activity and to manage his psychiatric symptoms. He also reported to clinicians that as part of his job, he unloaded trailers of 700 to 1000 pounds, requiring extensive pushing motion. During warm weather, the Veteran stated that he remained active doing yard work, along with his regular walks. During winter months, he reported that he only did sedentary activities indoors. The VA examinations of record found the impact of his TBI and headaches to be difficulty concentrating and focusing on tasks, impairment of short-term memory, and decreased social interaction. These are not manifestations that would affect the Veteran’s weight. Looking at his other service-connected disabilities, he had decreased grip strength in his left hand, difficulty sitting for long periods of time, and difficulty carrying heavy objects or bending over to pick up heavy objects. These manifestations would limit certain movements, but would certainly not preclude all forms of physical activity and exercise. Indeed, the Veteran reported needing to move after sitting for long periods, noting that walking helped reduce his pain and stiffness. By his own account he engaged in yard work, pushing of heavy objects, and frequent walking. A May 2015 VA PTSD examination found that the Veteran’s condition produced reduced reliability and productivity, but he did not have symptoms that would affect his ability to gain or lose weight, such as disturbances of motivation and mood or decreased interest in activities. While his service-connected disabilities do interfere with certain physical activities such as carrying heavy objects, the evidence clearly shows that the Veteran was able to perform alternative exercise activities such as walking and yard work. In light of his service-connected disabilities, medical professionals encouraged the Veteran to participate in these alternative physical activities as well as to maintain a healthy, nutritional diet including watching his caloric intake, limiting fat and cholesterol, increasing dietary fiber, and avoiding alcohol. However, despite the above, the Veteran’s weight continued to increase. Accordingly, after a review of the evidence of record, the Board finds no indication of an association between the service-connected disabilities and the onset of obesity. The record in this case is negative for any indication, other than the Veteran’s representative’s own general assertion, that the service-connected disabilities led to obesity. Neither the Veteran nor his representative has produced competent evidence indicating an association between the development of obesity and the service-connected disabilities. Thus, the Board finds the Veteran’s obesity was not proximately caused by his service-connected TBI residuals, or any other service-connected disability. Accordingly, the preponderance of the evidence is against a finding of service connection for sleep apnea. The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel