Citation Nr: 21001331 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 10-20 695 DATE: January 7, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for bilateral eye problems (right eye corneal abrasion), secondary to glass pane break is remanded. FINDING OF FACT The Veteran’s obstructive sleep apnea is proximately due to by his service-connected knee disability. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea as secondary to the Veteran’s service-connected knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1991 to May 1995. This appeal comes before the Board of Veterans’ Appeals (Board) from a rating decisions in December 2007 and July 2017 by Department of Veterans Affairs (VA) Regional Offices (ROs). 1. Entitlement to service connection for obstructive sleep apnea is granted. The Veteran contends that he suffers from obstructive sleep apnea (OSA) that was incurred as a result of weight gain caused by his service-connected knee disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104 (a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5017; 38 C.F.R. §§ 3.102, 4.3. The Board concludes that the Veteran’s currently diagnosed OSA is due to his service-connected disabilities. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Although obesity itself is not considered a disease or injury for which direct or secondary service connection may be granted, obesity can act as an “intermediate step” to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). Specifically, VA’s General Counsel has held that where it is shown that a service-connected disability causes a veteran to become obese and that obesity, in turn, is a substantial factor in causing additional disability, which disability, but for the Veteran’s obesity, would not have occurred, the resulting additional disability can be service-connected on a secondary basis. VAOPGCPREC 1-2017. The Veteran is presently service connected for right knee disability, evaluated as 10 percent disabling effective July 18, 2007. The Veteran has maintained that his service-connected knee disability is a barrier for physical activity which caused his obesity, and in turn caused his OSA. See May 2020 VA Form 9. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily-observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to diagnose his own medical condition. In October 2018, the Veteran provided a medical report prepared by a private physician. The doctor annotated that the Veteran was diagnosed with OSA from a sleep study in April 2017. The doctor wrote an opinion that the Veteran’s sleep apnea was caused by weight gain brought on by inactivity, which in turn was brought on and exacerbated by injuries suffered while in the military. See October 2018 Disability Benefits Questionnaire (DBQ) – Veteran Provided. The Veteran underwent a VA examination in January 2020, but the examiner did not confirm the diagnosis of OSA because the private sleep study was not available for review. See January 2020 Compensation and Pension (C&P) Examination. In February 2020, the same examiner who conducted the January 2020 examination was asked to provide opinion based on notification from the RO that the Veteran’s diagnosis of OSA was valid for VA benefit purposes. The examiner wrote that it was less likely than not (less than 50 percent probability) that the Veteran’s OSA was the result of obesity caused by his service-connected condition. The examiner’s rationale stated that medical records did not directly establish that the Veteran’s knee disability was the main or only cause of his obesity. Instead, the examiner reasoned, weight gain could also have been due to genetic disposition, nutritional issues, poor eating habits, poor effort, and other barriers for physical activity. See February 2020 C&P Examination. The absence of evidence cannot be taken as substantive negative evidence without a proper foundation to demonstrate that such silence has a tendency to prove or disprove a relevant fact. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The examiner’s opinion is thus minimally probative, as it did not address the Veteran’s lay statements regarding the onset of his obesity, and the rationale instead relies primarily on the absence of previous medical opinions in the record. Weighing the probative evidence of record, the Board concludes the claim is supported. The evidence is at least in equipoise that obesity is the intermediate step here, based on the Veteran’s competent lay statements regarding his weight gain, and the private medical opinion provided in October 2018. Affording the Veteran the benefit of the doubt, entitlement to service connection for sleep apnea, as caused by the Veteran’s service-connected disabilities, is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral eye problems is remanded. In May 2020, the claim for service connection for the Veteran’s bilateral eye conditions were remanded by the Court for the Board to readjudicate. Specifically, the Court directed the Board to consider whether the Veteran’s reports of blurry vision and use of artificial tears while on active duty was an early manifestation of his chronic allergic response to systemic environmental allergens. A preliminary review of the evidence indicates medical opinions of record, including the Veteran’s most recent eye examination in February 2020, do not address the questions posed by the Court. Further medical examination and opinion are therefore necessary before the Board may reach a decision in compliance with the Court’s remand order. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the nature and etiology of his bilateral eye condition. The examiner should indicate review of the complete claim file, and answer the following questions: (a.) Does the Veteran have a current eye impairment which was at least as likely as not (50 percent or greater probability) incurred in, caused by, or otherwise due to his military service? In answering the above question, the examiner is asked to specifically address the lay statements and service treatment record showing that after the Veteran’s in-service eye injury, he continued to experience blurry vision and gooeyness in his eyes, and continued use of artificial tears. The examiner should identify whether such reports at least as likely as not indicate an early manifestation of the Veteran’s chronic allergic reactions to environmental allergens, as found by the April 2014 VA Examination, or any other present eye condition. It is important that the examiner’s opinion discusses not only the Veteran’s in-service corneal abrasions, but also addresses the possibility that the Veteran’s present condition otherwise arose in service. The examiner should directly address the March 1995 service treatment record in which the Veteran reported continued blurry vision at night and use of artificial tear eye drops. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.