Citation Nr: 18158378 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-43 728 DATE: December 14, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The Veteran’s OSA is neither proximately due to nor aggravated beyond its natural progression by his service-connected hypothyroidism, and is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for secondary service connection for OSA are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 2017, a Board hearing was conducted in conjunction with the RO in Cleveland, Ohio, and the satellite office in Cincinnati, Ohio. A transcript of this hearing is contained within the electronic claims file. On appeal, the Veteran contends that his OSA is secondary to his service-connected hypothyroidism. To establish secondary service connection, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond is natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Veteran has been service connected for hypothyroidism since October 2003. VA Medical Center (VAMC) records show that the Veteran received a diagnosis of OSA in July 2013 after he underwent a sleep study. In his December 2014 Notice of Disagreement (NOD), the Veteran stated that his hypothyroidism has caused him to gain weight, which, in turn, has caused his OSA. In June 2016, the Veteran underwent a VA examination for his claim herein. The examiner opined that the Veteran has had obesity problems for more than twelve years and had a history of not exercising and frequently consuming fast food. The examiner stated that the Veteran had other comorbid conditions, which may lead to weight gain, including hypogonadism and chronic back and hip pain. In her conclusion, the VA examiner stated that there is insufficient evidence that the Veteran’s hypothyroidism is the cause of his obesity. In October 2016, the Veteran’s Representative reiterated the argument that the Veteran’s OSA proximately is due to the Veteran’s service-connected hypothyroidism. At the November 2017 hearing, the Veteran testified that he began noticing problems with his sleep since 2005, and the Veteran’s wife, who also attended the hearing, confirmed that she noticed the same problems. The undersigned Veterans Law Judge (VLJ) left the record open for sixty days so that the Veteran could obtain a medical opinion from his private treating physician. In August 2017, VA received a Sleep Apnea Disability Benefits Questionnaire (DBQ) completed by the Veteran’s private doctor, Dr. J.R. Dr. J.R. listed that the Veteran was diagnosed with OSA in July 2013, but also listed diagnoses of hypothyroidism and obesity. Dr. J.R. also listed the Veteran as having hypertension, hypogonadism, hip pain, and chronic back pain. Dr. J.R. indicated that the Veteran’s OSA does not impact the Veteran’s ability to work and, under the “Remarks” section, indicated that the “Veteran states his sleep apnea is contributed to by his weight, which is caused by hypothyroidism.” The evidence established that the Veteran has a diagnosis of OSA and that he currently is service-connected for hypothyroidism. Thus, the first two elements of secondary service connection have been established. See 38 U.S.C. § 1110; Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. The record, however, does not contain persuasive evidence establishing that the Veteran’s service-connected hypothyroidism either proximately caused or aggravated his OSA. The June 2016 VA examination report specifically explained that there was insufficient evidence to establish that the Veteran’s hypothyroidism was the cause of his obesity, which in turn contributes to OSA. In support of this conclusion, the examiner noted BMI in the obese range for over twelve years and that the Veteran reported not exercising and frequently consuming fast food, indicating that there are many other factors that could have led to the Veteran’s weight gain aside from his hypothyroidism, including hypogonadism, and back and hip pain. The examiner specifically stated that there is insufficient evidence that the Veteran’s hypothyroidism is the cause of his obesity. With that link ruled out, there is no evidence that the Veteran’s hypothyroidism proximately caused or aggravated by his OSA. The rationale provided for the opinion is supported by reasoning summarized above; and so, the Board affords this examination report considerable probative value. The Board has considered Dr. J.R.’s DBQ, but gives it little probative value. Dr. J.R.’s DBQ does not establish anything that the record did not already show. VAMC records confirmed a diagnosis of sleep apnea, and the VA examination already established that the Veteran had hypogonadism, chronic back pain, and hip pain. Dr. J.R. reiterates simply the Veteran’s theory of entitlement—that his hypothyroidism has caused his weight gain, which proximately has caused his OSA. The Board reiterates that the Veteran, while competent to report a gain in weight, is not competent to offer a medical nexus opinion as to the etiology of his weight gain. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 308–09 (2007). Thus, the Board is not required to accept Dr. J.R.’s statement as a nexus opinion because it is not independently arrived through professional knowledge or medical rationale. See Reonal v. Brown, 5 Vet. App. 458, 460–61 (1993) (Board is not bound to accept doctor’s opinion based exclusively on claimant’s recitations). Therefore, the Board finds that Dr. J.R.’s DBQ does not address the issue of proximate causation and affords it little probative weight. As previously mentioned, the Board finds the Veteran and his wife competent to report their observations about the Veteran’s patterns of sleep, and the Board has no reason to doubt their credibility. The issue of whether the Veteran’s hypothyroidism proximately caused or aggravated his weight gain and, in turn, his OSA, requires an opinion from a medical professional. This is especially true when considering the myriad factors that the VA examiner contributes to the Veteran’s excessive weight in this case. Thus, these statements do not address the issue before the Board in a probative manner. Thus, weighing all the relevant evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for tinnitus, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.310. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel