Citation Nr: 21004819 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-13 491 DATE: January 28, 2021 ORDER Entitlement to service connection for sleep apnea secondary to service-connected posttraumatic stress disorder (PTSD) and lumbar spine degenerative disc and joint disease is denied. FINDING OF FACT The Veteran's obstructive sleep apnea is not proximately due to or aggravated by his service-connected PTSD and lumbar spine disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea secondary to service-connected PTSD and lumbar spine degenerative disc and joint disease have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2001 to September 2001 and from April 2002 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019 and August 2020, the Board remanded the issue on appeal for further development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to or the result of a service-connected disability. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Further, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). The general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). 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 38 U.S.C. §§ 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. 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 1131 and, therefore, may not be service connected on a direct or secondary basis. The opinion further noted that obesity may be an intermediate step between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet this criterion, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would not have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). Entitlement to service connection for sleep apnea to secondary to service-connected PTSD and lumbar spine degenerative disc and joint disease is denied. The Veteran contends in his September 2017 notice of disagreement form that his sleep apnea was caused by weight gain due to his service-connected PTSD and lumbar spine disability. Consistent with the Veteran’s assertions, his service treatment records do not reflect a diagnosis of sleep apnea and there is no competent evidence suggesting the current sleep apnea disability onset in service or is otherwise related to service. Because the Veteran has not raised, and the record does not reasonably raise, a basis for direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected PTSD and/or lumbar spine disabilities. The Board concludes that, while the Veteran has a current disability of obstructive sleep apnea (OSA), the preponderance of the evidence is against finding that the Veteran’s sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Historically, the Veteran underwent a VA examination in December 2017 and the examiner opined that the Veteran’s obstructive sleep apnea is less likely than not proximately due to his service-connected PTSD and lumbar spine disability. The examiner’s rationale was that there was no nexus of causation found in the medical literature reviewed for PTSD and obesity, or for a low back condition causing obesity. The examiner reported that obesity is commonly caused by an intake of calories in excess of the daily caloric needs. Lastly, the examiner explained that while obesity is a risk factor for sleep apnea (as is age), it does not have a nexus of causation. As the examiner did not address whether the Veteran’s service-connected PTSD and lumbar spine conditions aggravated his obstructive sleep apnea beyond its natural progression, this particular issue was remanded in July 2019 for an addendum opinion. Pursuant to the Board remand, a new VA medical opinion was obtained in September 2019. The examiner opined the sleep apnea is not caused by the service-connected PTSD or lumbar spine disabilities. She explained that the two conditions are not medically related, and sleep apnea is separate entity entirely unrelated to the service-connected conditions PTSD or lumbar spine disabilities. She further explained that the medical literature does not support a medical relationship. Noting that this opinion failed to address the question of aggravation, and only addressed proximate causation, the Board remanded the appeal again in August 2020. In October 2020 and November 2020, a VA examiner opined that it is less likely than not that the Veteran’s OSA is due to or aggravated by the diagnosis of lumbar degenerative disc disease, PTSD with depression, other psychological comorbidities or the medications used to treat them. The examiner indicated that all relevant medical literature was reviewed, including the Veteran’s January 2019 medical articles. The examiner explained that while psychological conditions may cause sleep disturbances, those are different than OSA and do not impact the physiologic mechanism of OSA as they are mediated through a CNS pathway. He noted that this includes the medications used to treat psychological comorbidities and physical conditions. The examiner furthered that the medications act through a CNS pathway and are limited to the dosage effect, which would ameliorate upon cessation of the medication. The examiner also stated that PTSD and related psychological comorbidities, including depression and the medications used for treatment, do not cause PTSD, but it is clear to the Board that the examiner meant OSA rather than PTSD as typed. The examiner furthered that spinal conditions, to include degenerative disc disease of the lumbar spine, do not cause OSA. The examiner indicated that OSA is due to obstruction of the upper airways, associated with apneic episodes. There is no physiologic or anatomic mechanism by which these conditions can cause OSA. In a November 2020 addendum opinion, the examiner indicated that he had reviewed the articles submitted by the Veteran as instructed in the Board’s remand, as well as the Veteran’s claim file. The examiner indicated that his opinions remain the same; OSA is not caused or aggravated by the service-connected PTSD or lumbar spine disabilities. He explained that while orthopedic conditions can cause pain that prevents high impact activity, there are multiple activities, and other strategies, which can be used to prevent weight gain/obesity and therefore obesity due to an orthopedic condition is not the cause of OSA. The examiner also noted the Veteran’s fluctuating weight from VA treatment records and indicated that the Veteran is capable of weight loss despite his service-connected conditions and thus no nexus exists. The Board finds the VA medical opinions are probative because they are based on review of the Veteran’s medical history, medical literature, accepted medical knowledge and practice, and the examiners’ medical training and expertise. The opinions were supported by rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his OSA is proximately due to, the result of, or aggravated beyond its natural progression by his service-connected PTSD and lumbar spine disability, but he is not competent to provide a nexus opinion regarding this question. The issue is medically complex, as it requires knowledge of the interaction between anatomical relationships and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board acknowledges the January 2019 medical treatise submitted in support of the Veteran’s claim. Generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive. Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Medical treatise evidence may indicate enough of a basis of a generic relationship to establish “a plausible causality based on objective facts.” Mattern, 12 Vet. App. at 228 (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). This treatise evidence alone, when compared to the competent VA medical opinions, it is not found to be persuasive. The October 2020 VA examiner reviewed that evidence and still determined that the Veteran’s service-connected PTSD and lumbar spine disabilities neither caused nor aggravated his sleep apnea. The examiner provided cogent rationale in support for his opinion. The Veteran did not provide any private medical opinion that addressed his treatise evidence as it pertains to his particular circumstances. As the competent and most probative evidence fails to demonstrate a nexus exists between the Veteran’s OSA and his service-connected PTSD and/or lumbar spine disabilities, service connection is not warranted. The preponderance of the evidence is against service connection for OSA as secondary to PTSD and lumbar spine disability. The benefit of the doubt doctrine is thus not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. For the foregoing reasons, service connection is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.