Citation Nr: 21061330 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-49 627 DATE: October 1, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's service-connected lumbar spine disability and service-connected psychiatric disability caused him to become obese; the obesity was a substantial factor in causing his obstructive sleep apnea; and his obstructive sleep apnea would not have occurred but for obesity caused by his service-connected lumbar spine disability and psychiatric disability. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to March 1993. The Veteran contends that his obstructive sleep apnea has been aggravated by his service-connected disabilities, to include his service-connected lumbar spine disability and psychiatric disability. As will be explained in greater detail below, Dr. M.B. opined that the Veteran's obesity was secondary to his service-connected lumbar spine disability and psychiatric disability. Furthermore, Dr. M.B. concluded that his obstructive sleep apnea developed as a result of his obesity. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). Alternatively, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). In January 2017, VA's Office of General Counsel issued a precedential opinion that concluded 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 basis. Similarly, obesity is not a "disability" for the purposes of secondary service connection under 38 C.F.R. § 3.310. However, VAOPGCPREC 1-2017 recognized 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) if it is found that "(1) the service-connected disability caused the veteran to become obese; (2) the obesity was a substantial factor in causing the claimed secondary disability; and (3) the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability." Recently, the United States Court of Appeals for Veterans Claims issued a decision holding that, when VA addresses the question of obesity as an intermediate factor, it must evaluate whether a service-connected disability caused or aggravated the Veteran's obesity, just as it would when analyzing secondary service connection under 38 C.F.R. § 3.310. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). An October 2019 VA examination report and opinion concluded that it was less likely than not that the Veteran's service-connected psychiatric disability caused or aggravated his obstructive sleep apnea. The examiner noted that obstructive sleep apnea occurred when the muscles in the back of the throat relaxed too much to allow normal breathing, and that these muscles support structures including the back of the roof of the mouth, the triangular piece of tissue hanging from the soft palate, the tonsils, and the tongue. The examiner further noted that, when the muscles relaxed, the airways narrowed or closed, and breathing may be inadequate for ten seconds or longer. This, in turn, lowered oxygen in the blood and caused a buildup of carbon dioxide. The examiner concluded that the Veteran's obstructive sleep apnea had a clear physical cause, and that it was not caused or aggravated by his service-connected psychiatric disability. A September 2020 opinion from Dr. M.B. concluded that the Veteran's obesity was secondary to the pain associated his service-connected lumbar spine disability and the symptoms associated with his service-connected psychiatric disability. Furthermore, she concluded that his obstructive sleep apnea was secondary to his obesity. In reaching these conclusions, Dr. M.B. acknowledged the October 2019 VA medical opinion, as well as the June 2012 VA examination report noting the Veteran's report of continued low back pain with muscle spasms and radiation to his legs, and that the Veteran had to reduce his hours at work due to his pain. Dr. M.B. then highlighted an April 2017 VA treatment record, where the Veteran was noted to be eating a lot, he was counseled to lose weight, and physical therapy was added to his course of treatment. She also discussed a December 2014 psychiatric evaluation which noted that the Veteran drank when he was stressed, he was noted to be overweight, and the treatment provider noted that he was drinking to relax as a result of being overwhelmed with work and his children. Dr. M.B. then noted a September 2015 disability benefits questionnaire which indicated that the Veteran self-medicated his psychiatric symptoms with alcohol and drugs. Dr. M.B. then stated that obesity was a risk factor that contributed to obstructive sleep apnea. Further, as a result of the pain associated with the Veteran's service-connected lumbar spine disability, she stated that he was unable to be as active as he once was, and he was unable to exercise. This, in turn, led to a difficulty with losing weight. The Veteran over-ate as a result of his mental health symptoms, which was fairly common with individuals with psychiatric disorders. She then stated that, after reviewing the pertinent evidence of record, it was as likely as not that the Veteran's obesity was secondary to the symptoms associated with his service-connected lumbar spine disability and service-connected psychiatric disability. Furthermore, she concluded that his obesity proximately caused his obstructive sleep apnea, but she could not determine how much each of the Veteran's risk factors aided in the development and aggravation of his sleep apnea. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's obstructive sleep apnea is secondary to his service-connected disabilities, to include his service-connected lumbar spine disability and his psychiatric disability. Specifically, the probative evidence of record, including the October 2019 VA examination report and the September 2020 opinion from Dr. M.B., indicates that the Veteran's service-connected lumbar spine disability and psychiatric disability caused the Veteran to become obese; the obesity was a substantial factor in causing his obstructive sleep apnea; and his obstructive sleep apnea would not have occurred but for obesity caused by his service-connected lumbar spine disability and psychiatric disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.