Citation Nr: 21068080 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-36 199 DATE: November 9, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for diabetes mellitus, Type II is granted. Entitlement to service connection for peripheral neuropathy of the upper left extremity is granted. Entitlement to service connection for peripheral neuropathy of the upper right extremity is granted. Entitlement to service connection for peripheral neuropathy of the lower left extremity is granted. Entitlement to service connection for peripheral neuropathy of the lower right extremity is granted. Entitlement to service connection for hypertension is denied. Entitlement to service connection for migraine headaches is granted. FINDINGS OF FACT 1. The Veteran's sleep apnea is due to obesity which was caused by his chronic service-connected back disability and depressive disorder. 2. The Veteran's diabetes mellitus is due to obesity which was caused by his chronic service-connected back disability and depressive disorder. 3. The Veteran's peripheral neuropathy of the upper left extremity is due to his service-connected diabetes mellitus disability. 4. The Veteran's peripheral neuropathy of the upper right extremity is due to his service-connected diabetes mellitus disability. 5. The Veteran's peripheral neuropathy of the lower left extremity is due to his service-connected diabetes mellitus disability. 6. The Veteran's peripheral neuropathy of the lower right extremity is due to his service-connected diabetes mellitus disability. 7. The preponderance of the evidence of record is against finding that the Veteran has had hypertension at any time during or approximate to the pendency of the claim. 8. The Veteran's migraine headaches are due to his military service and the Veteran's service-connected sleep apnea. CONCLUSIONS OF LAW 1. The criteria for entitlement to 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 entitlement to service connection for diabetes mellitus, Type II, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for peripheral neuropathy of the upper right extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for peripheral neuropathy of the upper left extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to service connection for peripheral neuropathy of the lower left extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for entitlement to service connection for peripheral neuropathy of the lower right extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1994 to September 1998. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019. It is now before the Board for further adjudication. The issue of entitlement to service connection for depressive disorder was granted in full in a July 2020 decision, and therefore it is no longer before the Board. The Veteran's attorney argues that the claim for unemployability was implied in Dr. L.'s report; however, a claim for unemployability is not part and parcel of an original clam for service connection. All issue before the Board are original claims for entitlement to service connection. Therefore, the issue of unemployability is not before the Board currently. Service Connection 1. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is due to his obesity which is due to his sedentary lifestyle caused by his chronic back pain and depressive disorder. The Board concludes that the Veteran has a current disability that is due to his obesity that is caused by his service-connected disabilities. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303; VAOPGCPREC 1-2017 (January 6, 2017). The June 2016 VA treatment record notes a current diagnosis of severe obstructive sleep apnea. As noted above, the Veteran claims that his sleep apnea is due to obesity which is caused by his service-connected disabilities. The general requirements for direct and secondary service connection notwithstanding, obesity is not a disease or disability for VA purposes and is not subject to service connection. Additionally, obesity cannot be the underlying basis for service connection. That is to say, obesity is not an in-service incurrence, and, therefore, service connection may not be granted for a separate disability medically linked to in-service obesity. Further, as obesity is not a disability per se, service connection may not be granted for another disability rating proximately caused by obesity. However, 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 these criteria, the Veteran must demonstrate that a previously service-connected disability caused (in whole or in part) him to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). On these questions, there is a probative opinion in favor of the claim and an inadequate opinion. The December 2019 examiner opined that the Veteran's sleep apnea was related to his obesity. The examiner found it was at least as likely as not due to in-service injury, event or illness, but the examiner did not clarify what in-service event he was referring. The examiner answered the second criterion as to whether the Veteran's obesity was a substantial factor in causing sleep apnea but did not answer the other required questions. In October 2020, a private physician, M.S., submitted an opinion after reviewing the claims file and conducting a telehealth appointment with Veteran. The examiner explained in detail how chronic back pain from his service-connected back disability and his service-connected depression contributed to his development of obesity. The examiner then referenced several articles explaining that obesity was one major cause of sleep apnea. He further opined that the Veteran would not have developed sleep apnea but for the weight gain attributable to his service-connected chronic back pain and depression. The examiner answered each of the criterion required to find that obesity was the intermediate step between his service-connected disabilities and his sleep apnea diagnosis. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current sleep apnea is due to obesity caused by his service-connected disabilities. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for diabetes mellitus, Type II The Veteran contends that his diabetes mellitus, type II, is due to his obesity which is due to his sedentary lifestyle caused by his chronic back pain and depressive disorder. The Board concludes that the Veteran has a current disability that is due to his obesity that is caused by his service-connected disabilities. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303; VAOPGCPREC 1-2017 (January 6, 2017). The October 2019 Diabetes Mellitus Disability Benefits Questionnaire notes a current diagnosis of diabetes mellitus, type II. As noted above, the Veteran claims that his diabetes mellitus is due to obesity which is caused by his service-connected disabilities. The general requirements for direct and secondary service connection notwithstanding, obesity is not a disease or disability for VA purposes and is not subject to service connection. Additionally, obesity cannot be the underlying basis for service connection. That is to say, obesity is not an in-service incurrence, and, therefore, service connection may not be granted for a separate disability medically linked to in-service obesity. Further, as obesity is not a disability per se, service connection may not be granted for another disability rating proximately caused by obesity. However, 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 these criteria, the Veteran must demonstrate that a previously service-connected disability caused (in whole or in part) him to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). On these questions, there is a probative opinion in favor of the claim and two inadequate opinions of record. In an October 2019 opinion, a VA examiner provided an opinion for metabolic syndrome and included obesity as one of the cluster of metabolic disorders. An opinion as to whether metabolic syndrome which includes obesity is at least as likely as not related to service is not relevant here because obesity is not a disability for VA purposes. The opinion is inadequate. In another opinion provided in December 2019, a VA examiner noted that obesity does not singularly aggravate diabetes mellitus beyond its natural progression and did not do so in the Veteran's case. Again, the examiner did not provide an opinion as to whether the Veteran's service-connected disabilities causes (in whole or in part) him to become obese and the examiner did not opine whether the diabetes mellitus would only have occurred but for the obesity. This opinion is also inadequate. The opinion in favor of the claim is provided by a private physician, M.S., in October 2020. M.S. reviewed the claims file and conducted a telehealth appointment with Veteran prior to providing his opinion. The examiner explained in detail how chronic back pain from his service-connected back disability and his service-connected depression contributed to his development of his obesity. The examiner then referenced an article explaining that obesity was the primary cause of the development of diabetes mellitus, type II. He further opined that the Veteran would not have developed diabetes mellitus but for the weight gain attributable to his service-connected chronic back pain and depression. The examiner's opinion meets criteria required to find that obesity was the intermediate step between his service-connected disabilities and his diabetes mellitus diagnosis. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current diabetes mellitus, type II, is due to obesity caused by his service-connected disabilities. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for diabetes mellitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for peripheral neuropathy of the upper right extremity 4. Entitlement to service connection for peripheral neuropathy of the lower left extremity 5. Entitlement to service connection for peripheral neuropathy of the upper left extremity 6. Entitlement to service connection for peripheral neuropathy of the lower right extremity The Veteran contends that his peripheral neuropathy of his upper and lower extremities is due to his diabetes mellitus, type II. The October 2019 VA examination show the Veteran has current disabilities of diabetic peripheral neuropathy in the upper and lower extremities. The examiner opined that it was at least as likely as not that the Veteran's peripheral neuropathy is proximately due to his diabetes mellitus. In this decision, the Board is granting service connection for the Veteran's diabetes mellitus, type II. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current upper and lower extremity peripheral neuropathy is proximately due to service-connected diabetes mellitus, type II. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for upper and lower extremity peripheral neuropathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 7. Entitlement to service connection for hypertension The Veteran contends that his hypertension is due to his military service. 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, 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of hypertension and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The December 2019 VA examiner examined the Veteran and determined that he did not have a diagnosis of hypertension. Specifically, the examiner noted that the Veteran did not meet the VA diagnostic criteria for hypertension, he has never taken medication for hypertension and continues to have normal blood pressure readings. Further, VA treatment records do not contain a diagnosis of hypertension. While private physician, M.S., stated in an October 2020 letter that the Veteran had a diagnosis of hypertension, there is no indication that M.S. performed a physical examination or any diagnostic tests to confirm the presence of hypertension. M.S. only conducted a telehealth appointment with the Veteran. Instead, the physician's statement appears to be based on the Veteran's self-reported medical history, which is inconsistent with VA treatment records and VA examination that show no diagnosis of hypertension. Consequently, the Board gives more probative weight to the December 2019 VA examiner's findings and the VA treatment records. While the Veteran believes he has a current diagnosis of hypertension, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 8. Entitlement to service connection for migraine headaches The Veteran contends that his current migraine disability is related to his military service. The Board concludes that the Veteran has a current disability that is related to a fall in-service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The December 2019 Disability Benefits Questionnaire (DBQ) shows that the Veteran has a current diagnosis of migraine headaches. Thus, the question becomes whether the current disability is related to service. On this question there is a probative opinion in favor of the claim and an inadequate opinion. Unfortunately, the October 2019 VA opinion is inadequate. The October 2019 VA examiner opined that it was less likely as not that the Veteran's headaches were due to motor vehicle accident. The examiner noted the Veteran's 2018 complaints that his headaches were due to antennas and radars, but the examiner did provide an opinion as to whether these were the cause of his headaches or whether his headaches were otherwise related to his military service. The opinion is inadequate. The evidence in favor of the claim includes an October 2020 opinion. In an October 2020 letter, private physician, M.S., stated that the Veteran had a current diagnosis of migraine headaches, and it was at least as likely as not due to his fall in service. The examiner noted that the Veteran sustained a significant head injury when he fell from a ladder during service at which time he lost consciousness. The examiner explained that migraine headaches are often directly caused by trauma. He cited to medical articles to support his opinion. In the alternative, the examiner opined that the Veteran's headaches were at least as likely as not secondary to 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 current migraine headache disability is related to service or to service-connected sleep apnea. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a migraine headache disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.