Citation Nr: 20022075 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-37 117 DATE: March 30, 2020 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for obesity is denied. FINDINGS OF FACT 1. The Veteran’s symptoms of sleep apnea began during service. 2. Service connection for obesity as directly related to service and/or as related to a service-connected disability that in turn has caused or aggravated another disability, is not warranted. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for obesity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from December 1984 to February 1991. He is a veteran of the Peacetime and Gulf War Era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran’s Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). In April 2019, the Veteran presented sworn testimony during a video-conference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. 1. Entitlement to service connection for sleep apnea Service Connection is granted for disabilities resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for a disorder to be service connected, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). As to the incurrence and nexus elements of service connection, under § 3.303(b), a demonstration of continuity of symptomatology can constitute significant circumstantial evidence of a nexus between the claimed in-service disease or injury and the current disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 494-97 (1997). Continuity of symptomatology may be established if a claimant demonstrates: (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247 (1999). In making its decision, the Board must consider all the evidence of record, including medical evidence and lay evidence, and make appropriate determinations of competence, credibility, and weight. Washington v. Nicholson, 19 Vet. App. 362 (2005). Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007), Baldwin v. West, 13 Vet. App. 1, 8 (1999). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran was diagnosed with sleep apnea during a sleep study in October 2011, meeting the first required element of service connection. The Veteran’s service treatment records contain no complaints of, treatment for, or a diagnosis of sleep apnea. The lack of records is not dispositive but constitutes evidence to be considered and weighed against other medical and lay evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran asserted that his sleep apnea began in service. In addition to his own statements and testimony, the Veteran submitted three buddy statements. A Decision Review Officer noted that review of one buddy’s personnel file shows he attended basic training at a different location than the Veteran and was thereafter stationed in different locations. While acknowledging the possibility of witnessing sleep apnea symptoms sporadically during visits, the DRO found the assertion of having slept in the same room for many years (while in Navy) is not credible. Nonetheless, the Board finds that is not a reason to discount the buddy statement totally in the analysis of whether the Veteran’s sleep apnea symptoms are related to his service. The Veteran also submitted a lay statement from his brother in which he reports observing apnea like episodes following service. The Veteran also submitted a third buddy statement stating that the writer was stationed with the Veteran on the USS Key West and observed apnea-like episodes while in service. During the April 2019 hearing, the Veteran asserted that his sleep apnea is directly related to his military service. The Veteran testified that his roommates in the service told him he would snore loudly, then “stop breathing, then gasp for air, in a kind of cycle.” They would try to shake him, and awaken him but it would “start again, just constantly.” He stated that he did not see a doctor at that time because sleep apnea was not recognized and he was on a submarine, so he just continued to “get up and stand watch.” The Veteran noted the buddy statements that he submitted that indicated observations of the symptoms he described. The Veteran stated that after service, he lived with his brother and his brother related that he observed the same symptoms. The Veteran stated that when he initially was discharged from service he went to the VA and told them he thought he had sleep apnea and the VA concluded that he had sleep apnea. He stated his symptoms were the same from the time he was in service until he was diagnosed. The delay was in diagnosis, the condition did not suddenly develop later. The Veteran stated that his sleep apnea, obesity, and need to care for his handicapped brother caused him to “give up his job.” The Board finds the buddy statements are credible as to the observations of the Veteran’s sleep apnea symptoms, while recognizing the extent of one of these periods of observation is uncertain based on the statements. In combination with the Veteran’s lay statements and testimony at the Board hearing, the Board weighed this evidence in light of the Veteran’s later diagnosis of sleep apnea. Under 38 U.S.C. § 1154(a), competent and credible lay evidence can establish medical diagnosis or etiology, if the facts of the case support it. Section 1154(a) requires that VA give due consideration to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board makes the determination whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service, or whether lay evidence can suffice. This determination depends on whether the Veteran's present condition requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation. Savage, 10 Vet. App. 488, 494-97. If the latter is true, the Board weighs the lay testimony and makes a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is considered competent when it relates readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board. 38 C.F.R. § 3.159; Barr v. Nicholson, 21. Vet. App. 303 (2007), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Once evidence is determined to be competent, the Board determines whether the evidence is credible, as credibility is needed to assign probative value to the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As a finder of fact, when considering lay evidence, the Board may consider internal consistency of statements, facial plausibility, consistency with other evidence submitted by the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. In weighing the evidence, the Board finds the lay testimony offered by the Veteran and the buddy statements credible. The Veteran is competent to report his observable symptoms of sleep apnea in service and continuing after discharge. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran’s and witness statements and testimony that his sleep apnea symptoms began in service to be credible. The Veteran competently and credibly reported continuity of symptoms since service, which were then diagnosed by a medical professional, and the Board finds that this is strong and persuasive evidence that his sleep apnea began in service and has continued ever since service. In summary, the Board finds that the most competent evidence of record is at least in equipoise as to whether the Veteran’s obstructive sleep apnea had its onset in military service. Giving the Veteran the benefit of the doubt, the Board therefore finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for obesity Service treatment records indicate that the Veteran became obese during service. At his enlistment examination in 1984, the Veteran weighed 198 pounds. At separation, he was noted to weigh 251 pounds. Obesity itself is not a condition for which service connection can be granted; it is a condition, and at most, a symptom. See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities) (No diagnostic code for obesity but listing weight gain as a symptom in some diagnostic codes). A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). There must be competent medical evidence of a current disability to support service connection. The January 2015 rating decision denied service connection for obesity because the medical evidence of record fails to show that a chronic disability associated with this condition has been clinically diagnosed. Service treatment records show that the Veteran was placed on a special diet in service due to mild obesity, which was secondary to a poor diet. There is no evidence that the Veteran had a chronic medical condition in service leading to obesity. Obesity is not an actual disabling condition for which compensation can be granted without a diagnosis of an associated chronic disability, such as hypothyroidism. The Veteran provided relevant testified during the Board hearing. As to the obesity issue, the Veteran became obese during service and the Veteran explained that while deployed on a submarine, “you eat, you sleep, and you go to your duty station” and he was not recommended for advancement due to his obesity. He stated his obesity aggravated everything else. It was explained to the Veteran that obesity itself not considered a disorder that one can get direct service connection for it. However, it can be a “stepping stone” if it’s related to a service connected-disability. If a veteran has obesity that is related to a service-connected disability and that obesity causes another disorder, like diabetes, he can get service connected for that other disorder. Obesity first has to be related to a service-connected disability. VA's Office of General Counsel (OGC) has held that a claim for secondary service connection may be based on obesity 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). See VAOPGCPREC 1-2017. Under 38 C.F.R. § 3.310(a), a disability which is proximately due to or the result of a service-connected disease or injury is service connected. A determination of proximate cause is one of fact, for determination by adjudication personnel. Therefore, it must be determined whether obesity can qualify as an "intermediate step" between the Veteran’s service-connected sleep apnea and other claimed disabilities. Applying the factors described by OCG, adjudicators must 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 disability for which secondary service connection is being sought; and (3) whether the Veteran’s sleep apnea would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the Veteran’s sleep apnea may be service connected on a secondary basis. In summary, service connection for obesity as directly related to service is denied and as the record also does not establish that obesity is related to a service-connected disability that in turn has caused or aggravated another disability, service connection for another disability based on the Veteran’s obesity as a “stepping stone” is also not established. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.