Citation Nr: 21061882 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-18 399A DATE: October 5, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran's sleep apnea is proximately due to her service-connected PTSD and orthopedic disabilities. CONCLUSION OF LAW The criteria for service connection for sleep apnea as secondary to service-connected PTSD and orthopedic disabilities are 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 March 1996 to June 1996, and from November 1996 to October 2004. This matter is on appeal to the Board of Veterans' Appeals (Board) from a December 2011 rating decision. Procedurally, the Veteran timely appealed the December 2011 rating decision denying her claim. A hearing was held by the undersigned Veterans Law Judge in August 2017, and the claim was remanded by the Board in July 2018 for further development. In March 2020, the Board denied her claim. In January 2021, the Court of Appeals for Veterans Claims (CAVC) signed an order vacating the March 2020 decision and remanding the claim back to the Board pursuant to a Joint Motion for Remand (JMR), wherein the parties agreed that the relied-upon December 2018 and July 2019 VA opinions were inadequate. The Veteran contends that her diagnosed sleep apnea began in service; alternatively, she has contended that it is proximately due to her service-connected PTSD, sinusitis, allergic rhinitis, asthma, and/or orthopedic disabilities. Specifically, she contends that her orthopedic disabilities rendered her unable to exercise, causing weight gain, which in turn caused her development of sleep apnea. Similarly, she was simultaneously experiencing PTSD symptoms that led her to use food consumption as a coping mechanism, also resulting in weight gain. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). While obesity itself is ineligible for service connection, it may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis. See VA. Off. Gen. Couns. Prec. Op. 1-2017, at 2-3. The pertinent inquiries are (1) whether the service-connected disabilities caused obesity (or aggravated obesity); (2) whether the obesity or aggravation of obesity as a result of the service-connected disability/disabilities was a substantial factor in causing sleep apnea and (3) whether the sleep apnea would not have occurred but for the obesity caused/aggravated by the service-connected disability. Id.; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). Turning to the evidence, the service treatment records (STRs) reflect intermittent complaints of difficulty sleeping. The STRs also reflect multiple orthopedic injuries, to include the Veteran's back, right hip, right ankle, left and right foot, and right knee. The Veteran was diagnosed with sleep apnea in 2011. Medical treatment records reflect the diagnosis but provide no evidence relating to a nexus. In her hearing, the Veteran endorsed experiencing sleep problems in service. In her VA Form 9, she explained that her symptoms started manifesting in the military with weight gain, military sexual trauma/PTSD, snoring, mood swings, depression, dry mouth and throat, and inability to sleep throughout the night. In her Notice of Disagreement, she explained that she began to gain weight in 2000 because of lack of exercise due to injury to the left foot and several surgeries. She began to snore loudly, waking her family and herself, and began awakening with a dry mouth and sore throat. She had difficulty staying awake, abrupt awakenings accompanied by shortness of breath, intermittent pauses in breathing during sleep, and excessive daytime drowsiness. According to the Veteran, her neck circumference was larger than 15 inches. She was taking antidepressants and pain medication, which she thought may also have caused her sleep apnea. A September 2011 VA opinion found that the sleep apnea was less likely than not related to service. Noting the mention of difficulty sleeping in service, the examiner reasoned that this symptom coincided with her main complaint of depression and anxiety, and that there was no evidence to suggest that her sleep apnea was at all related or had any nexus to the sleep disturbance likely from pain she experienced while on active duty. However, this opinion did not consider whether the sleep apnea was proximately due to the Veteran's depression and anxiety. Because of this deficiency, a new VA opinion was obtained in December 2018. The examiner provided a thorough medical summary of the definition of sleep apnea and how it occurs. Importantly, the examiner stated that obesity is the most common cause of sleep apnea because of the increase in neck circumference which causes increased obstruction. He opined that sinusitis, rhinitis, and asthma are not conditions that cause sleep apnea according to medical literature. Because the examiner did not relate the medical literature to the Veteran's particular medical condition and circumstances of her sleep apnea, the JMR found the opinion inadequate. A July 2019 addendum opinion opined that there was "no indication from available records to say without merely speculating that the veteran's sleep apnea was aggravated by her rhinitis, sinusitis and/or asthma." Similarly, the JMR found the opinion inadequate as the examiner did not adequately explain what additional information would be needed in this case to provide an opinion. In August 2021, the Veteran submitted a private medical opinion drafted by Dr. B. Dr. B. reviewed the entirety of the claims file and interviewed the Veteran. Dr. B. provided a chronological medical timeline compiled from the medical records and Veteran's testimony, beginning with the in-service orthopedic injuries, anxiety, and depression, as well as her steady weight gain from normal weight at enlistment to clinically obese by 2007, three years post-service. She continued to complain of sleep disturbance both in-service and post-service until her 2011 diagnosis. Dr. B. provided a thorough summary of the physiological correlation between PTSD and sleep apnea, with citation to medical literature. He also explained the risk for obesity in disabled veterans, particularly those with PTSD who engage in self-rewarding mechanisms of food consumption, as the Veteran has indicated. As the December 2018 VA examiner stated, Dr. B. explained the strong contributory role that obesity plays in the development of sleep apnea. Dr. B. applied the medical literature to the Veteran's specific circumstances; she reported engaging in anxious eating after experiencing depression and isolation related to her in-service sexual trauma. He opined that her service-connected PTSD substantially contributed to her weight gain through unhealthy food habits, leading to her obesity, and subsequently increasing the risk for sleep apnea. He further opined that her PTSD substantially contributed to the development of sleep apnea, both directly and through the development of obesity as an intermediate condition, and, therefore, it is at least as likely as not that the sleep apnea developed secondary to her PTSD. Alternatively, Dr. B. explained that those with orthopedic conditions are more likely to be obese than the general population, due to the inability to exercise and resulting inactivity. In the Veteran's case, she is service connected for a left heel fracture, right ankle sprain, lumbosacral strain and right knee injury. Since service, she has experienced chronic difficulty walking and reported gaining weight after service because it was difficult for her to exercise. Dr. B. noted that her medical records showed a consistent history of weight gain since active duty, which demonstrate that her service-connected orthopedic disabilities substantially contributed to her obesity. Given the connection between the Veteran's history of inability to exercise and progressive weight gain to her orthopedic disabilities, Dr. B. opined that it was at least as likely as not that the Veteran's sleep apnea developed as secondary to her orthopedic conditions by way of developing obesity as an intermediate step. The Board finds Dr. B.'s opinion to be highly probative as it considers current medical literature and applies it to the Veteran's particular circumstances with a detailed, clear, and logical explanation. As such, the Board finds that the elements of service connection on a secondary basis either due to service-connected PTSD or orthopedic disabilities have been met. The most probative evidence of record establishes that the Veteran's sleep apnea is at least as likely as not proximately due to her service-connected PTSD, either directly or through the development of obesity as an intermediate condition. Similarly, the evidence also establishes that the Veteran's sleep apnea is at least as likely as not proximately due to her service-connected orthopedic disabilities through the development of obesity as an intermediate condition. The Veteran's claim is granted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.